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FORTESCUE 



DE LAUDIBUS 



LEGUM ANGLIiE. 



\ 



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in 2007 with funding from 

Microsoft Corporation 



http://www.archive.org/details/delaudibuslegumaOOfortuoft 



FORTESCUE 

DE LAUDIBUS 

LEGUM ANGLIC. 

THE TRANSLATION INTO ENGLISH 

Published a.d. MDCCLXXV. 

AND 

THE ORIGINAL LATIN TEXT. 

WITH NOTES. 

By A. AMOS, Esq. 

op Lincoln's inn, barrister at law, and late fellow 
of trinity college, cambridge. 



CAMBRIDGE: 

Printed by J. Smith, Printer to the University; 
FOR JOSEPH BUTTERWORTH & SON, LONDON; 

J. COOKE, ORMOND QUAY, DUBLIN; JT. CLARK, PARLIAMENT SQUARE, 
EDINBURGH; AND J. DEIGHTON & SONS, CAMBRIDGE. 

1825 



m 



TO 



THE REVEREND 



THE MASTER and THE FELLOWS 



OF 



TRINITY COLLEGE, CAMBRIDGE: 



— 0- 



Gentlemen, 

I have presumed to inscribe this Work 
to you, which I have prepared during my 
residence in your College, in the intervals of 
relaxation from my profession that have 
been afforded me. When I observed the ad- 
vancement in every department of learning 
which the members of your illustrious Society 
were daily atchieving, I also felt desirous of 
endeavouring to contribute to the improvement 
of our National Jurisprudence, by republishing 
and illustrating the writings of an eminent 



VI 



Judicial character, whose title to the admiration 
of his Countrymen renders him worthy to be 
ranked with your Lord Bacon, and your Sir 
Edward Coke. I do not anticipate any praise 
for that part of the publication which is my 
own, but shall be highly gratified by your 
accepting the dedication of it as a testimony 
of my gratitude and friendship. 

I have the honor to be 
with the highest respect, 

your most obedient Servant, 



. 



ANDREW AMOS. 



: 



■ ■ ■ • ■.'■'■■ 



■ 



PREFACE. 



A new edition of Fortescue's treatise " De 
Laudibus Legum Angliae" appeared to the Editor 
an useful undertaking, not only because he consider- 
ed that copies of the work had become scarce and 
expensive, but also on account of the intrinsic value 
of the matter it contained. In the present edition 
will be found the Translation published in the year 
1775; together with the original composition in 
Latin subjoined. A few notes are added; in which 
an endeavour has been made to point out rather 
than to pursue those channels of investigation which 
seemed requisite for elucidating the text, or for 
illustrating it by shewing its relation to the History, 
Antiquities, and Jurisprudence of the Country. 

In examining the merit of this small tract of 
Fortescue, and the claim which it possesses upon 
public attention, it will be remembered with what 
respect it has been cited by the most eminent per- 
sonages, whose names adorn our judicial annals, 
Coke, Somers, Holt, Blackstone. In many of the 
most momentous questions which have been agitated 
in Parliament and in the Courts of Westminster 
Hall, a powerful appeal has been made to the autho- 
rity of this treatise. Neither can the character or the 
situation of the Author fail of imparting an additional 



Vlll PREFACE. 

interest to it. He was a person who filled the office 
of Chief Justice of England with great reputation, 
during a considerable period of the reign of Hen. VI. 
When he was composing his work " De Laudibus 
Legum Angliae," he occupied, like Clarendon, 
the station of Lord High Chancellor, by the ap- 
pointment of a Sovereign who had been deprived 
of his throne: And both those illustrious legal 
characters were conspicuous for making the in- 
struction of their countrymen the object of their 
meditations in exile. Fortescue conceived that he 
was pursuing a judicious course for securing the 
future happiness of the English Nation, in forming 
the character of the Heir Apparent to the throne, 
and acquainting him with the duties of a Patriot 
King: a task which in later times, even Hampden 
did not look upon as derogatory to his talents, or 
incompatible with his independence. 

Philosophy has undergone almost a new birth 
since the period when Fortescue wrote; education 
has received much improvement; the stores of 
learning have been augmented; experience has 
instructed and enlightehed the present generation 
by the example of the ages that are past: It will 
not therefore be thought surprising that the re- 
flections which the wisest of our ancestors have 
transmitted to us should often appear to our under- 
standings puerile or ridiculous, the result of con- 
tracted or prejudiced views. Nevertheless the 



PREFACE. IX 

opinions and feelings of antiquity must be made 
an object of research, if we wish to arrive at an 
intimate knowledge of laws, considered as a criterion 
of the wants and the sentiments of a people. Lord 
Bacon has remarked that historians afford us a very 
imperfect light in this enquiry, " Versatur infelicitas 
quaedam inter historicos vel optimos, ut legibus et 
actis judicialibus non satis commorentur, aut si forte 
diligentiam quandam adhibuerint, tamen ab authen- 
ticis longe varient." Whereas the writings of 
Portescue present an interesting picture, drawn 
from what was passing under his immediate view, 
of the political, moral, religious and physical situ- 
ation of the Country connected with its juris- 
prudence. It is from these circumstances, more 
than from books of Statutes and Reports, that the 
origin of national laws is to be discovered, their 
spirit and meaning to be collected, their ex- 
cellence to be appreciated, and the blind veneration 
which often attends them to be dissipated. A pre- 
vious enquiry concerning the original sources of 
national law is surely necessary for unfolding the 
design and the principles of our earlier legal institu- 
tions, and must afford great facilities towards the 
comprehending those parts of the present fabric of our 
Jurisprudence, of which the construction is of an 
ancient date, or which have been fashioned after the 
ancient model. Considering that in the present 
treatise of Fortescue, are laid before the reader the 



X PREFACE. 

materials which may assist in composing- a philo- 
sophical history of the law, whilst the sentiments 
of our ancestors are there recorded upon the deeply 
important subjects of religion, government, and the 
administration of Justice, we shall perhaps not think 
the value of the work to have been overrated by 
Sir William Jones, who ascribed to it the precious- 
ness of gold a . 

The benefit resulting from the perusal of For- 
tescue's treatise will be deemed of paramount 
utility, if it has the effect of cherishing in the 
minds of reflecting men those principles of govern- 
ment and civil obedience, which it inculcates, and 
which are admirably calculated to unite a Sovereign 
and his people by the ties of mutual interest, and 
of reciprocal protection and dependence. If 
these principles were first promulgated by Fortescue 

3 Sir W. Jones, in recommending to a learned foreigner 
the works from which a knowledge of the English Constitution 
might be best collected, says, 

Alter, libellus est, de quo dici potest id quod de fluvio 
Teleboa scripsit Xenophon, Meya<; /xeu ov, Ka\o<s Se. Auctor 
fuit Angliae Cancellarius sub rege Henrico sexto, et ob turbulenta 
tempora, cum alumno suo principe Edwardo, in Galliam fugit ; 
ubi, cum esset summa senectute, aureolum hunc dialogum con- 
texuit. Certe leges nostrae, ut in illo libro videbis, persapienter 
sunt composite, ut ait Pindarus, 

No/jio? 6 TtavTiav Btur&tot 

Qvarmv re ko< adavaTwv, 

Outos Se Zrj ayei fiiaiws 

To ciKaioTov, vtrepTaTa 

Xeioi. 

Et reliqua quae citat in Gorgia Plato. 



PREFACE. XI 

during- his banishment, and when he was in the 
service of a Lancastrian King, he asserted them 
again in his work upon Political Monarchy, after 
he was restored to his Country, and his allegiance 
was plighted to a Prince of the House of York : 
and it will be seen in the course of the ensuing- 
pages, that the spirit of the ancient government of 
England, as pourtrayed in this treatise, derives 
ample confirmation both from domestic authorities, 
and from foreign testimony. It may not appear 
a useless or unimportant task to have labored for 
the preservation of this early record of those simple 
and intelligible truths, which ought to form the 
basis of every rational government; and the im- 
portance of which is manifested by the fatal con- 
sequences arising from the neglect of them that 
are legible in our national history. 

The remarks of Fortescue upon the legal in- 
stitutions which are the subject of his panegyric, 
may be productive of other beneficial effects, if they 
satisfy the reader, that much of the ancient part of 
our law requires a serious revisal and amendment. 
It is impossible to peruse the Chancellor's observa- 
tions in the course of the present treatise, without 
perceiving the extraordinary change which time 
has occasioned in the circumstances, the manners 
and the opinions of the English People. This 
obvious reflection may tend to confirm an im- 
pression, that the intricacy and want of rationality, 



XII PREFACE. 

which are justly imputed to a considerable portion 
of the Law of England, arise from an adherence 
to antiquated forms and maxims, adapted to a state 
of society totally different from our own. The 
institutions of the past generation have been 
moulded to supply the wants of the succeeding 
one, until the Law of the Country has become 
disfigured by a variety of fictions and subterfuges, 
scarcely intelligible even to lawyers, and highly 
oppressive to the community, by their prolixity 
and liability to error. It may be advisable in the 
present day to retrace the interval of some cen- 
turies, and to survey the provisions of our municipal 
law, with the light afforded by an ancient encomiast. 
It may be expedient to sift and examine the reasons 
which our forefathers assigned in support of what 
they have established. The mind will thus be en- 
abled, by a more close observation, to distinguish 
between those parts of our system of jurisprudence, 
whose estimation has survived the period during 
which they were useful and appropriate, and such 
as retain an essential connection with the tranquillity 
and freedom of the Country. 

Temple, Feb. 1, 1825. 



The, Syndics of the University Press, always conspicuous 
for their anxiety to promote the cultivation of every branch 
of human knowledge, have defrayed out of the funds at their, 
disposal the whole expence of publishing this Work. 



CONTENTS. 

-^- 

Page 
Introduction 1 

Chap. I. The Chancellor exhorts the Prince to the Study of 
the Laws 2 

Chap. II. The Prince's Answer 7 

Chap. III. The Chancellor enforceth his Exhortation 8 

Chap. IV. He proves that a Prince by the Laws may be made 
happy 11 

Chap. V. Ignorance of the Laws causes a Contempt thereof 14 

Chap. VI. A Repetition of his Exhortation 17 

Chap. VII. The Prince yields his Assent, but proposes his 
Doubts 19 

Chap. VIII. Such a Knowledge of the Law as is necessary for 
a Prince is soon to be acquired 20 

Chap. IX. A King, whose Government is political, cannot 
change the Laws 26 

Chap. X. The Prince proposes a Question 33 

Chap. XI. The Chancellor for Answer refers the Prince to 
his Treatise concerning the Laws of Nature, where the 
aforesaid Question is handled at large 34 

Chap. XII. How Kingdoms ruled by regal Government first 
began 35 

Chap. XIII. How those ruled by political Government first 
began 37 

Chap. XIV. The Prince abridges what the Chancellor had 
been discoursing of in the two foregoing Chapters 41 



XIV CONTENTS. 

Page 

Chap. XV. All Laws are the Law of Nature, Customs or 
Statutes 41 

Chap. XVI. The Law of' Nature in all Countries is the same 48 
Chap. XVII. The Customs of England are of great Antiquity, 

received and approved of by Jive several Nations successively 51 

Chap. XVIII. How Statutes are made in England. . . ., 55 

Chap. XIX. The Difference between the Civil Laws and the 
Laws of England 62 

Chap. XX. The first Case wherein the Civil Laws and the 
Laws of England differ 63 

Chap. XXI. The Inconveniencies of that Law which tries 

Causes by Witnesses only 67 

Chap. XXII. Concerning Torture and putting to the Rack 70 

Chap. XXIII. The Civil Law defective in doing Justice... . 76 

Chaf. XXIV. The Division of Counties. Sheriffs and their 

Appointment 78 . 

Chap. XXV. Jurors. How chosen and sworn 85 

Chap. XXVI. How Jurors are informed by Evidences. The 
way of Proceeding in Civil Causes « 89 

Chap. XXVII. The way of Proceeding in Capital Cases. . . 92 

Chap. XXVIII. The Prince otvns his Conviction, thai the 
Laws of England are much more commodious for the Sub- 
ject as to the Proceedings in the above instances, than the 
Civil Law 100 

Chap. XXIX. The Reasons why Inquests are not made up of 
Jurors of Twelve Men in other Countries 102 

Chap. XXX. The Prince commends the Laws of England 
with respect to their Proceeding by Juries 109 

Chap. XXXI. Whether the Proceeding by Jury be repugnant 
to the Law of GOD, or not Ill 

Chap. XXXII. The Chancellor's Answer 113 

Chap. XXXIII. The Prince asks the Reason why some of 
our Kings have taken disgust at the Laws of England. . . 123 

Chap. XXXIV. The Chancellor's Answer 125 



CONTENTS. XV 

Page 

Chap. XXXV. The Inconveniencies which futppen in France 
by means of the Absolute Regal Government 129 

Chap. XXXVI. The Comparative Advantages in England, 
where the Government is of a mixed Nature, made up of' 
the Regal and Political 134 

Chap. XXXVII. Concerning the Regal Government, and the 
Political Government 141 

Chap. XXXVIII. The Prince desires the Chancellor to pro- 
ceed to other Cases wherein the Laws of England and the 
Civil Laws disagree • 144 

Chap. XXXIX. Concerning the Legitimation of Children 

born before Matrimony 145 

Chap. XL. The Reasons why Base-barn Children are not in 

England by the subsequent Marriage legitimated 148 

Chap. XLI. The Prince's Approbation of the Reasons given 
in the foregoing Chapter 152 

Chap. XLII. Concerning the Rule of the Civil Law: Partus 
semper sequitur Ventrera 155 

Chaf. XLIII. The Prince yields his Assent to the Chancellor, 
and disapproves of the said Rule 16*1 

Chap. XLIV. Concerning the Tuition of Orphans 162 

Chap. XLV. Concerning the Education of the young Nobi- 
lity during their Minority 1 67 

Chap. XL VI. Concerning open Theft, and private Theft... 172 

Chap. XL VI I. The Prince passes on to an Enquiry why the 
Laws of England are not taught in our Universities, and 
why there are not Degrees conferred on the Common Law- 
yers, as is usual in the other Professions 175 

Chap. XLVIII. The Chancellor's Answer '. 1 77 

Chap. XL IX. The Disposition of the General Study of the 
Laws of England. Of the Inns of Chancery, and the Inns 
of Court, and that they exceed in Number any of the Foreign 
Universities 182 

Chap. L. Of the Stale, Degree and Creation of a Serjeant 
at Law 189 



XVI CONTENTS. 

Page 

Chap. LI. Of the Judges of the Courts in Westminster-Hall, 
the Manner of their Creation, Habit and Employment. . . 194 

Chap. LII. The Prince starts an Objection with Respect to 
the Delays in Law- Proceedings 201 

Chap. LIII. The Chancellor's Answer 202 

Chap. LIV. Conclusion 206 

Original Latin Text 209 

Appendix. Protest of Lord Nottingham respecting the Va- 
cancy of the Throne 269 

Extracts from Forlescue on Monarchy 271 



INTRODUCTION. 



During that impious and unnatural Civil War 
beween the Houses of York and Lancaster, which 
not long since raged in England, and by means 
whereof their Sovereign King Henri/ VI. with his 
consort Queen Margaret, who was daughter of the 
King of Jerusalem and Sicily, and their only son 
Edward Prince of Wales, were obliged to quit the 
kingdom : and at last, the King, being taken prisoner 
by his subjects, suffered a very long and terrible im- 
prisonment. But the Queen, with her son, being 
thus banished, made her abode in the dutchy of 
Berry, which at that time belonged to her father, 
the King of Jerusalem. 

The Prince, as he grew up to man's estate., applied 
himself wholly to martial exercises; and being often 
mounted on fiery and wild horses, which he did not 
fear to urge on with the spur, made it his diversion, 
sometimes with his lance, sometimes with his sword, 
or other weapons, to attack and assault the young 
gentlemen his attendants, according to the rules of 
military discipline : which a certain grave old knight, 
his father's Chancellor, at that time in banishment with 
him, perceiving, thus accosts the Prince : 



DE LAUDIBUS 

LEGUM ANGLliE. 



CHAP. I. 

I am right glad, most serene Prince,, at that worthy 
genius of your's, whilst I observe with how great 
an inclination you employ yourself in such manly 
and martial exercises; which become you, not so 
much as you are a soldier, as, that one time or other, 
you will be our king. For it is the duty of a king- 
to fight the battles of his people, and to judge them 
in righteousness., (1 Kings viii. 20.) Wherefore, as 
you divert and employ yourself so much in feats of 
arms, so I could wish to see you zealously affected 
towards the study of the laws a ; because, as wars are 
decided by the sword, so the determination of justice 
is effected by the laws : which the emperor Jus- 
tinian wisely considering, in the very beginning of 
the Introduction to his Institutes, says, " It is not 
only incumbent upon the Imperial majesty to be 
graced with arms, but also to be fenced about with 
the laws : that he may know how to govern aright, 
both in times of peace and of war b ." As an induce- 

a There is a curious tract written by Sir Robert Cotton entitled, 
" An answer to such motives as were offered by certain military 
men to Prince Henry, inciting him to affect arms more than 
peace." 

b Our early writers upon law had a singular whim for imi- 
tating this passage in the beginning of their treatises. See the 
commencement of Glanville, Bracton, Fleta : the ancient treatise 
on the Scotch law called " Regiam Majestatem," derives its name 
from this circumstance. 



3 

ment to set yourself in good earnest about the study 
of the laws, the greatest lawgiver of his time, Moses, 
formerly chief of the congregation of the people of 
Israel, invites you more effectually than Justinian, 
when, by divine inspiration, he commands the kings 
of Israel, to read the laws all the days of their life, 
saying thus : " It shall be when he sitteth upon the 
throne of his kingdom, that he shall write him a copy 
of this law in a book, out of that which is before the 
priests, the Levites ; and it shall be with him, and 
he shall read therein all the days of his life, that he 
may learn to fear the Lord his God, to keep all the 
words of this law, and these statutes, to do them," 
(Deut. xvii. 18, 19.) Helynandus, upon the place, 
says, " A prince therefore ought not, neither is he 
permitted, under the pretence of his duty as a soldier, 
to be ignorant of the laws.— A little after he is com- 
manded to take a copy of the law from the priests 
and Levites, that is, from catholic and learned men." 
Thus he. Deuteronomy is the book of laws whereby 
the kings of Israel were obliged to govern the people 
committed to their charge : Moses commands their 
kings to read this, book, that they may learn to fear 
the Lord their God, and keep his statutes which are 
written in the law. Behold, to fear God is the effect 
of the law, which a man cannot attain to, unless he 
first know the will of God as it is written in the law. 
For, the principal, the chief point of obedience, is to 
know the will of that Master whom we are to serve 
and obey: and yet Moses here in this edict of his, 
mentions the effect of the Law first, viz. The fear 
of God, and then exhorts to the keeping the com- 
mands of God, which are the cause of that fear; for 
the effect is always prior to the cause in the intention 
of the person who exhorts. But what kind of fear is 
that which the laws propose to the keepers thereof? 
Sure, it cannot be that fear, of which it is written 
(1 J6hn iv. 18.) that perfect love casteth out fear. 
Yet that fear, though it seems a servile fear, often 

a 2 



stirs up kings to read the laws. But this is not the 
effect of the law : the fear which Moses here in- 
tends, and which the laws produce, is that described 
by the prophet, "The fear of the Lord is clean, 
enduring for ever/' (Psalm xix. 9) This fear is 
filial and quite excludes that servile dread and horror, 
which that hath which is cast out by love. This pro- 
ceeds from the laws, which teach to do the will of 
God, in the doing whereof we shall escape all pun- 
ishment. "The glory of the Lord (say the Scrip- 
tures) is upon them that fear him, whom also he 
glorifieth :" in a word, this fear is the same which 
Job speaks of, when, after he had turned his thoughts 
many ways in search after wisdom, he gives us this, 
as the result of his enquiry ; " Behold the fear of the 
Lord, that is wisdom, and to depart from evil is un- 
derstanding," (Job xxviii. 28.) to depart from evil, 
the laws teach and caution ; wherein/ they also pro- 
duce that fear of God, which is the true wisdom 3 . 

a The first few chapters of this treatise are replete with ex- 
ploded opinions of philosophy, antiquated definitions of law, 
and strained applications of Scripture. # Our ancient lawyers 
suffered their opinions and doctrines to receive a false and 
improper tincture from the favorite studies of their age; which 
in proportion as they were few in number, had a greater ten- 
dency to exercise an undue operation on the judgment. Learn- 
ing, before it became generally diffused, imparted a mystical 
importance to its possessors, and a display of it would con- 
sequently be gratifying to them : neither was it to be expected, 
that one age could rescue from destruction, and collect together 
the stores of ancient wisdom sacred and prophane, and that it 
should also reduce them to their proper level in the scale of 
human knowledge, and to their proper influence on the human 

understanding. The clerical and judicial character were in 

early times commonly united, (Spehnan's Gloss, voc. Justiciaries. 
Dugdale's Origines, p. 21, 22.) and theological learning was a 
favorite pursuit of the most eminent legal characters of this 
country. Sir E. Coke's poetical advise to students respecting 
the study of the Scriptures is well known. Sir Thomas More 
gave lectures, when a young man, upon St. Augustine "de 
civitate Dei " in St. Lawrence' church : Clarendon wrote re- 
flections and contemplations upon the Psalms of David; and 

Burnet 



Burnet observes in his Life of Hale, that a person who should 
read the compositions upon the subject of divinity, which that 
Judge wrote, would imagine that the study of theology had 
occupied most of his time and thoughts. Fortescue informs us, 
in a subsequent part of this treatise, how much the reading of 
the Scriptures was blended with that of Law, in the Inns of Court: 
it is not therefore surprizing if instances are found in the early 
law books and reports, in which a zeal for theological learning 
has betrayed the cultivators of it into occasional deviations 
from sound judgment, and violations of correct taste. Examples 
of this nature occur in the treatise called the Mirror, in which 
the Saxons are called throughout the people of God, and a 
comparison is made between their history and that of the Jews. 
In the resemblance which is traced in Plowden between a fine in 
the common pleas and the patriarch Noah. In a multitude of 
illustrations from Scripture adopted by Sir E. Coke in his 
writings, especially in the third Institute, not the least singular, of 
which are the reasons he assigns for the several parts of the 
judgment in high treason, (3 Inst. 229, Hobbes's works 638. 

Plowden 354<. Popham 43.) Not less remarkable is the strong 

tincture which the minds of our ancient lawyers imbibed from, 
the Aristotelian philosophy : Sir John Dodderidge who died a 
Justice of the King's Bench, a. d. 1628, in a treatise called " The 
English Lawyer " expounds the law of England according to the 
doctrines of the schoolmen, treating each subject with reference 
to its material, formal, efficient and final cause: A commission 
of sewers is viewed in the same fourfold light by Sir E. Coke in 
his reports, and he considers the creation of a corporation as 
taking place conformably to Aristotle's notions respecting the 
origin of bodies in nature: The great deference paid by 
lawyers to the authority of that philosopher is very apparent 
from Plowden's observations, at the conclusion of his report of 
the case of Eyston and Studd; and the impressions which the 
jurisprudence of the country has received from this circumstance 
are still very discernible, (Keighley's Case, 10 Rep. Case of Sut- 
ton's Hospital, 10 Rep. and see Noy's Maxims under the Heads 

Logic and Philosophy.) It is also observable, that the writings 

of the civilians had a material influence in forming the opinions 
of the legal profession in this country. The law of England in 
its infancy, stood greatly in need of being improved, and 
enriched, from the ample treasures to be found in the code of 
a highly civilized and enlightened people. We learn from Selden, 
that till the time of Edward the third, the doctrines of the civil 
law produced a sensible effect upon the judicial opinions, de- 
livered in our courts of justice, (Selden Diss, ad Fletam.) The 
quantity of materials of which Bracton has availed himself from 
the stores of the imperial jurisprudence, has, in the opinion of 
some persons, diminished his credit for fidelity, as a writer upon 

English 



English law, (Plotvden's Comm. 357, and marginal references, ibid. 
§ee the question examined in Reeve's History of the Law. Henry III.) 
Our ancestors were quicksighted in discerning the inexpediency 
of the imperial constitutions, whenever they militated against 
the rights of a free people ; yet in other respects the step was 
not an immediate one, from looking up to authorities which justly 
merited their reverence, and which were their only guides in the 
complicated science of jurisprudence, to the scrutiny of them by 
the light of an unprejudiced reason. 

The reader will perhaps be of opinion, that the few first chap- 
ters of this work, although they contain but a small portion of 
legal or constitutional information, may nevertheless be read 
with profit, as exhibiting an interesting example of the cast of 
thought which characterizes the ancient lawyers of this country, 
and the nature of the studies which principally engaged their 
attention. 



CHAP. II. 



When the Prince heard this, looking very in- 
tently at the old knight, he replied, I know, good 
Chancellor, that the book of Deuteronomy is a part 
of the Holy Scriptures, that the laws and ceremonies 
contained therein are of divine institution and pro- 
mulgated by Moses; upon which account the reading 
of them is matter for a pious and devout contempla- 
tion : but the Law, to the study and understanding 
whereof you now invite me, is merely human, deri- 
ved from human authority, and respects this world : 
wherefore, though Moses obliged the kings of Israel 
to the reading of the Deuteronomical law, it does not 
thence reasonably follow, that by the same rule he 
invites all other kings to do the like as to the laws 
of their respective dominions : the reason of the 
study of the one, and of the other, is not strictly 
the same. 



CHAP. III. 



Chancellor. I observe, most excellent Prince, 
from your reply, with what care and attention you 
weigh the nature of my advice, which encourages 
me very much, not only to explain more clearly, 
but to enter somewhat deeper into the matters I 
have begun and proposed to you; be pleased to 
know then, that not only the Deuteronomical, but 
also all human laws are sacred; the definition of 
a law being thus, "It is an holy sanction, com- 
manding whatever is honest, and forbidding the 
contrary*." And that must needs be holy, which 

a The definition in the text is taken from the civil law, and 
is cited by Coke from Bracton. Blackstone has made it the 
subject of a copious commentary. It has been objected to by 
Hobbes, on the ground, that it supposes a statute, enacted by 
the soverign power of a nation, may be unjust : this objection 
savours of Hobbes's peculiar philosophical notions, but perhaps 
it may be urged against the definition, that a law would not 
cease to be one, on account of its violating the rules of moral 
justice. Blackstone's opinions in that part of his work, in which 
he treats of the nature of law in general, are animadverted on 
with great ability by Mr. Bentham in his " Fragment on Govern- 
ment." Hobbes's own definition of a law, is the following: " The 
command of him or them, that have sovereign power, given to 
those that be his or their subjects, publickly and plainly de- 
claring what every one of them may do, and what they must 
forbear to do." {Dialogue between a Lawyer and a Philosopher.) 
The same writer points out a distinction between the terms jus and 
lex, which Coke uses promiscuously, but of which the different 
import is explained by Grotius, (Dejure Belli ac Pads, lib.i.ch. 1.) 
Other definitions of a law have acquired considerable celebrity, 
being those which are given by Demosthenes, Cicero, Mon- 
tesquieu and Hooker. The subject has suggested some very 
ingenious philological speculations. (Diversions of Purley r 
Vol. II. p. 7 and S, on the words right, just, law.) 



is so in its definition. The law or right is also 
defined "to be that, which is the art of what is good 
and equal;" or, the law considered as a science or 
profession, may aptly be defined in the same manner. 
Whence we, who are the ministerial officers, who 
sit and preside in the Courts of Justice, are therefore 
not improperly called, Sacerdotes, (Priests b ). The 
import of the latin word (Sacerdos) being one who 
gives or teaches holy things; and such are all laws 
which are solemnly enacted and promulgated, though 
made by men : seeing the Apostle says, (Rom. xiii. 1.) 
that all power is from God. Laws which are made 
by men, (who for this very end and purpose receive 
their power from God) may also be affirmed to be 
made by God, as saith the author of a book, going 
under the name of Auctor Causarum, whatsoever 
the second cause doth, that doth the first cause, but 
in a more excellent manner. Wherefore king Je- 
hoshaphat says to his judges, (2 Chron. xix. 6.) 
ff Take heed what you do, for ye judge not for 
man, but for the Lord, who is with you in the 
judgment:" whereby you are instructed, that to 
study the laws, though of human institution, is in 
effect to study the laws of God; which therefore 
cannot but atford a pious and devout entertainment. 
But neither was it out of devotion only (as you 
rightly judge) that Moses commanded the kings 
of Israel to read the book of Deuteronomy rather 
than any other part of the Pentateuch, since all of 
them abound in matter for a devout and holy con- 
templation; to meditate on which is the part of every 
good man : the true reason of this command is, that 
in the book of Deuteronomy, the laws, whereby the 

h Gravina adduces this appellation, which the Roman lawyers 
gave themselves, among other instances, to shew that the imperial 
law bears many traces of being supplied from the tenets and 
notions of the ancient schools of philosophy: The Stoics called 
themselves the priests of virtue. (Gravina de Jurisconsultorum 
Philosophia.) 



10 

kings of Israel were obliged to govern their subjects, 
are more expressly, more explicitly particularized 
than in any other of the books of the Old Testament, 
as the circumstances of the command do plainly 
evince. Wherefore, my prince, the same cause 
does no less exhort you than the kings of Israel, 
that you ought to be a studious enquirer into those 
laws, whereby you may be hereafter qualified to 
govern your subjects. For, what is said to the 
kings of Israel must be figuratively intended to 
be spoken to every king who bears rule over a 
people, who know and worship the true God. 
Upon the whole, could any thing be more fitly or 
more usefully offered to your consideration, than 
this command enjoined to the kings of Israel, to 
read and study their law ? Since, not only the 
example, but the typical authority thereof instructs 
and obliges you to behave conformably to the laws 
of that kingdom, to the crown whereof, with the 
permission of Divine Providence, you are in due 
course of time apparently to inherit. 



u 



CHAP. IV 



The Laws, my dear Prince, do not only,, with the 
Prophet, saying, ''Come, ye children, hearken unto 
me, I will teach you the fear of the Lord/' 
(Ps. xxxiv. 1 1 .) call on you to fear God, whereby 
you may become wise ; but the same laws also 
invite you to be exercised in them, that you may 
attain to felicity and happiness (as far as they are 
attainable in this life.) For all the philosophers, 
who have argued so differently about happiness, 
have agreed in this, that happiness is the end of 
all human desires, for which reason they call it 
the summum bonum, the greatest or chief good : 
the Peripatetics placed it in virtue ; the Stoics in 
what is honest ; and, the Epicureans in pleasure : 
ibut, inasmuch as the Stoics denned that to be honest 
which is done well and laudably, according to the 
rules of virtue ; and the Epicureans asserted that 
nothing is or can be pleasant without virtue; all 
those sects, according to Leonardus Aretinus, in 
his Introduction to Moral Philosophy, have con- 
curred in this, that it is virtue alone which procures 
and effects happiness, wherefore Aristotle, (Lib. 7- 
Polit.) denning happiness, says, " That it is the 
perfect exercise of all the virtues. This being 
granted, T desire you to consider what will follow 
from these premisses. Human laws are no other 
than rules whereby the perfect notion of justice 
can be determined : but that justice, which those 
laws discover, is not of the commutative, or dis- 
tributive kind, or any one particular distinct virtue, 
but it is virtue absolute and perfect, and distinguished 
by the name of Legal Justice, which the same 



12 

L. Aretinus affirms to be therefore perfect, because 
it utterly rejects and discountenances whatever is 
vicious, and teaches an universal virtue, for which 
it is deservedly called, simply, by the name of virtue 
in the general; concerning which thus Homer and 
Aristotle, It is the most excellent of all the virtues, 
and that nor morning* nor evening star is so bright 
or lovely as this. This justice is the subject of 
the royal care 3 , without which a king cannot act 
in his judicial capacity as he ought to do, and 
without which he cannot justly engage in any war: 
but this being once attained and strictly adhered 
to, the whole regal office will, in all respects, be 
adequately and completely discharged; so that (to 
sum up what we have said) happiness consists in 
the perfect exercise of all the virtues ; and since 
that justice which is taught and acquired by the 
law, is universal virtue, it follows, that he who has 
attained this justice, is made happy by the laws, 
consequently has attained the summum bonum, or 
beatitude, since that and happiness in this fleeting- 
life mean the same thing. Not that the law itself 
can do this exclusive of divine grace : nor will you 
be able to learn either what is law or virtue without 
it, not so much as in the inclination to it. For, 
as Parisiensis says, " The internal appetitive virtue 
of man is so vitiated by original sin, that .vicious 
practices relish pleasantly, and the works of virtue 
seem harsh and difficult." Wherefore, that some 
give themselves up to admire and follow virtue, is 
owing to the grace of God, and not their own 
natural strength or uprightness of disposition. May 
I not now ask the question, Whether the laws, 
which through the divine concurrence work such 
good effects, as I have laid before you, are not to 

a That justice is an indispensible qualification in a Sovereign, 
was impressively inculcated by Burnet, on a very suitable occasion, 
in his sermon at the coronation of William and Mary, from the 
text 2 Sam. ch. xxiii. vcr. 3 and 4. 



13 

be studied with the utmost application ? since he, 
who hath a just notion of them, is in the way to 
arrive at that felicity, which, according to the 
philosophers, is the end and completion of all human 
desires, and the chief good of this life. Though 
what I have hitherto offered is of general considera- 
tion only, and therefore may not seem to concern 
you, as you are heir apparent to a Crown; yet, 
the words of the Prophet lay an obligation on you, 
even in that capacity, to apply yourself to the study 
of the law, when he says, " Be instructed, ye judges 
of the earth," (Ps. ii. 10.) The Prophet does not 
here persuade to the learning of any mechanical 
art or trade, nor yet of any science in theory, how 
proper or beneficial soever to mankind ; for he does 
not say in general, Be instructed, ye inhabitants 
of the earth, but addresses himself in a particular 
manner to the kings, or rulers of this world ; and 
exhorts them to the study of the law, according to 
which they ought to administer justice and judgment 
to their people: "Be instructed, ye judges of the 
earth." — It follows, " lest at any time the Lord be 
angry, and ye perish from the right way." Neither, 
great Sir! do the Scriptures only oblige you to be 
instructed in the laws, by which justice is to be 
learned and attained, but in another place gives it 
you in charge to love justice herself, saying, " Love 
righteousness, ye that be judges of the earth." 
(Wisd. Solomon i. 1.) 



14 



CHAP. V. 



But, Sir! how will you love righteousness, or 
justice, unless you first acquire a competent know- 
ledge of the laws, by which justice is to be learned 
and known : for, as the philosopher says, "Nothing 
is admired or loved unless it be known," which made 
the orator Fabius say, " That it would be well with 
the arts and sciences, if artists only were to make a 
judgment of them." What is not known, is so far 
from being loved, that it is usually despised, as saith 
a certain poet, 

The Rustic what he knows not always slights. 

Nor is this the way of the clown only, but of men 
of learning and skill in the liberal arts and sciences. 
Suppose (for instance) a natural philosopher, who 
had never studied either the Mathematics, or Meta- 
physics, should be told by a Metaphysician that his 
science considers things abstracted from all matter 
and motion, both as to their essence or reality, and 
as to our conception of them: the Mathematician 
asserts, that his science considers things in reality 
conjoined to matter and motion, but separated from 
them in our conception : it is certain that our Natu- 
ralist, who was never acquainted with any thing- 
separated from matter and motion, either in reality 
or conception, would not forbear laughing at both 
of them, and would be apt to despise their respective 
sciences, though of a sublimer nature than his own ; 
and that for nO other reason, but because he is 
perfectly unacquainted with them. So (my Prince) 
would you in like manner be surprised at a lawyer 



15 

who should assert, that one brother shall not succeed 
in the father's inheritance to another brother, who 
is not born of the same mother, but that the inhe- 
ritance shall rather descend to the sister of the whole 
blood, or it shall come to the lord of the fee by way 
of escheat*: you would be surprised (I say) at this, 
as not knowing the reason of the law in this particular 
case. Whereas the seeming- difficulty of this case 
gives no perplexity at all to such as are skilled in the 
common law of England: which confirms the vulgar 
saying, " The arts and sciences have no enemy but 
the unlearned." 

But far be it, my Prince, that you should prove 
averse, or an enemy to the laws of that country to 
which you will in time inherit by right of succession, 
when the above cited text of Scripture instructs you 
to Jove righteousness. Wherefore, most noble Prince, 
permit me again and again to importune and beseech 
you to inform yourself thoroughly in the laws of your 
father's kingdom, not only that you may avoid the 
inconveniencies I have mentioned, but because the 
mind of man, which has a natural propensity to what 
is good, and can desire nothing but as it has the 
appearance of good, as soon as by instruction it 
comes to a perfect knowledge of that good, it rejoices, 
takes pleasure therein, and as it improves by reflec- 
tions, the pleasure grows more and more; from 
whence you may infer, that when you come to be 
instructed in those laws, to which you are at present 
a stranger, you will most certainly affect and love 
them, because they are excellent in their nature and 
reason ; and the more you know of them, the more 
will you be entertained and pleased. For what is 

a The rule of descent mentioned in the text, "frater fratri 
uterino non succedet in haereditate paterna," is remarkable for 
being more liberal, than the rule for excluding the half blood, 
in the present day; and the passage in the text, is noticed 
upon that account by Blackstone in his commentaries : he says, 
that it agrees with what is found in the costumier of Normandy. 



16 

once loved does by use transform the person into its 
very nature, according to the philosopher, u Use 
becomes a second nature." So the cion of a pear- 
tree grafted on an apple-stock, after it has taken, 
draws the apple so much into its nature, that both 
become a pear-tree, and are called so from the fruit 
which they produce. So, virtue put in practice grows 
into a habit, and imparts its very name to those who 
practice it : as we say of one who is indued with 
modesty, continence or wisdom, that he is modest, 
continent, wise. So you (my Prince) when you shall 
have practised justice with delight and pleasure, and 
have, as it were, transcribed the law, with the rule 
of justice, into your very habit and disposition, will 
deservedly obtain the character of a just prince \ 
And, as such, be saluted with those agreeable words 
of the Psalmist, "Thou lovest righteousness, and 
hatest wickedness, therefore God, thy God, shall 
anoint thee with the oil of gladness above thy fellows," 
(Ps. xlv. 7.) 

a Sir E. Coke, whose mind was deeply impregnated with 
the learning of the schools, says, that the King's justices were 
anciently called Justiciar, for that they ought not only to be justi 
in the concrete, but ipsa justitia in the abstract. (2 Inst. 26.) 



17 



CHAP. VI 



And now, most gracious Prince, are not these 
arguments, which I have offered, abundantly sufficient 
to induce you to the study of the law? Since thereby 
you will acquire a habit of justice, be honoured with 
the name and character of a just prince; not to say, 
that you will thereby also avoid the imputation and 
disgrace which attends ignorance; and moreover you 
will thereby attain to (that, which all men covet after) 
happiness, as far as it is attainable in this life; and 
through that fear of God which is the truest wisdom, 
and that charity or love of God which, in the peace 
and satisfaction of it, passes all understanding, being, 
as it were, united to the best and greatest Being, the 
fountain of all happiness and perfection, you will 
become (to use the Apostle's expression) one spirit 
with him. 

But, because these things (as I said) cannot be 
wrought in you merely by the law, without the 
special assistance of divine grace, it is necessary that 
you implore for that above all things; as also that 
you search diligently into the knowledge of the 
divine law, as contained in the Holy Scriptures. For 
Holy Writ saith, " Vain are all men by nature who 
are ignorant of God," (Wisd. Solomon xiii. l.) I 
advise you, therefore, my Prince, that whilst you are 
young, and your soul is, as it were a virgin-table, 
a blank space, you write it full with such things 
as I have above hinted at, lest afterwards it be 

15 



18 

more pleasantly, though delusively filled with charac- 
ters of little or no importance, according to the saying 
of a certain author: 

The vessel its first tincture long retains. 

What mechanic is there so inattentive to the 
advantage of his child, as not to instruct him in his 
trade while he is young, whereby he may afterwards 
gain a comfortable subsistence. So the carpenter 
teaches his son to handle the axe; the smith brings 
up his at the anvil; a person designed for the sacred 
office of the ministry is bred, in a liberal way, at 
school: so it becomes a king to have his son (who 
is to succeed him) instructed in the laws of his 
country whilst he is yet young\ Which rule, if 
kings would but observe, the world would be governed 
with a greater equality of justice, than now it is. 
And, if you please to follow the advice I give, you 
will show an example of no small consequence to 
other princes, persons of the same high rank and 
distinction with yourself. 

a King Charles the first, on the occasion of his trial, speaks of 
his being as conversant with the law of this country, as any 
private gentleman in his dominions. The necessity of the study 
of the municipal law to a Sovereign, is inculcated in king James's 
Bao-iAiKoi/ htopov. lib. ii. The subject is more fully discussed in Here- 
baschius's work, de Erudiendis instruendisque Principum liberis. 
There are some interesting particulars preserved in the Paston 
Letters, respecting the manner in which the father of the Prince, 
whom Fortescue is addressing, was brought up. (Vol. III. -Articles 
declaratory of how the Earl of Warwick took charge of Henry the 
sixth, when a minor.) 



19 



chap vir 



The Chancellor having ended, the Prince began 
as follows : You have overcome me, good Chancellor, 
with your agreeable discourse; and have kindled 
within my breast a more than ordinary thirst after 
the knowledge of the law. There are two things, 
nevertheless, which make me fluctuate, so that, like 
a ship in a storm, I know not which way to direct 
my course. One is, when I recollect how many 
years students of the law are taken up, before they 
arrive at any competent knowledge of it: which 
discourages me, lest I employ all my younger years 
in like manner : another thing is, whether to apply 
myself to the study of the laws of England, or of the 
Civil Laws, which are so famous throughout the 
universe : for a kingdom ought to be governed by 
the best of laws, according to the philosopher, nature 
always covets what is best. Wherefore I would 
willingly attend what you advise in this matter. To 
whom the Chancellor: Sir! there is no such mystery 
in these things, as to require abundance of delibera- 
tion ; and therefore I shall give you my thoughts 
upon the matter without keeping you in suspense. 



b 2 



20 



CHAP. VIII. 



The philosopher, in the first of his Physics, says, 
<c 'Tis supposed that we then know every thing, 
when we apprehend the causes and principles thereof 
as high up as the first elements:" upon which the 
Commentator observes, that by principles, Aristotle 
meant the efficient causes, that by causes, the final 
causes are intended, and by elements the matter and 
form: now in the laws there are not, properly speak- 
ing, matter and form, these being what go to the 
composition of natural things; but something anala- 
gous to it however, viz. certain elements, out of which 
they arise, as Customs, Statutes, or Acts of Parlia- 
ment and the Law of Nature: whereof the laws of 
particular kingdoms consist, as natural things do of 
matter and form; what we read or write consists 
of letters which are called the elements of Reading 
and Writing. As for the Principia, which the 
Commentator calls the efficient causes, these are no 
other than certain Universalia, which the learned 
in the law, as well as mathematicians, call Maxims a , 

a Lord Bacon, in the preface to his Maxims, has detailed the 
advantages, which he supposes may result from collecting the 
rules and grounds dispersed throughout the body of the laws. 
But the benefit which science has received from the use of 
maxims, is of a questionable nature, and the adoption of them 
is attended with danger wherever the ideas are confused. (Locke 
on the Human Understanding, Book IV. ch. 7») Perhaps there 
is a period in the progress of every system of laws, previous to 
which the formation of maxims will be productive of bad effects, 
as leading to the establishment of principles which it is not 
permitted to controvert, but which more enlightened views of law 
and jurisprudence, would repudiate, (See further concerning the 
maxims of the English law. Sir I. Dodderidge's English Lawyer, 
■and Doctor, and Student, Dial. 1. ch: 8 and 9.) 



21 

in rhetoric they are called Paradoxes, the civilians call 
them Rules of Law. They are not discoverable by 
stress of arguments or logical demonstrations, but 
as is said (secundo posteriorum) by induction, by 
the assistance of the senses and the memory : where- 
fore, in the first of his Physics, Aristotle has it, that 
"principles are not made up of other things, nor 
one of another. But other things proceed from 
them;" wherefore, according to the same author, 
the first of his topics, it is, that " every principle 
carries its own evidence with it, so that there is 
no disputing with those who deny first principles:" 
because, as the same philosopher writes in the first 
of his Ethics, " Principles do not admit of proof 
by reason and argument." Whosoever therefore 
desires to get a competent understanding in any 
faculty of science, must by all means be well in- 
structed in the principles thereof. For, by reasoning 
from these principles, which are universally acknow- 
ledged and uncontested, we arrive at length at the 
final causes of things. So that, whoever is ignorant 
of these three, the principles, causes and elements 
of any science, must needs be totally ignorant of the 
science itself; on the other hand, when these are 
known, the science itself is known too, at least in 
general and in the main ; though not distinctly and 
completely. 

So we judge that we know the law of God, in 
knowing what is faith, hope, charity, the sacraments 
and God's commandments: leaving other mysteries 
in Divinity to those who preside in the Church. 
Wherefore, our blessed Saviour says to his disciples, 
" Unto you it is given to know the mysteries of the 
kingdom of God, but to others in parables, that 
seeing they might not see, and hearing they might 
not understand." And the Apostle cautions, " Not 
to think of one's self more highly than we ought 
to think," (Rom. xii. 5 and 16.) And, in another 
place, " not to mind high things, not to be wise 



22 

in our own conceits." So, my Prince, there will 
be no occasion for you to search into the arcana 
of our laws with such tedious application and study; 
it will be sufficient, as you have made some progress 
in grammar, to use the same method and proportion 
in the study of the laws. As to grammatical learn- 
ing, which consists of Etymology, Orthography, 
Prosodia and Syntax, as so many springs or foun- 
tains running together to complete it; you are not 
so perfect a master, it is true, as to be acquainted 
with all the particular rules and exceptions com- 
prehended under each of these ; but yet that general 
knowledge of grammar, which you have acquired, 
is sufficient for your purpose, from whence you may 
be justly stiled, a grammarian. In like manner 
you may be deemed a lawyer in some competent 
degree, when, as a learner, you shall become ac- 
quainted with the principles, causes and elements 
of the law. It will not be convenient, by severe 
study, or at the expence of the best of your time, 
to pry into nice points of law; such like matters 
may be left to your judges and counsel, who in 
England are called Sergeants at Law, and others 
well skilled in it, whom in common speech we call 
Apprentices of the law : you icill better pronounce 
judgment in your courts by others than in person : 
it being not customary for the kings of England 
to sit in court, or pronounce judgment themselves b ; 
and yet they are called the King's judgments, 
though pronounced and given by others: as Jeho- 
shaphat asserted, that "they judged not for man, 
but for the Lord, who was with him in the judg- 
ment," (2 chron. xix. 6.) Wherefore, most gracious 
Prince, you will soon, with a moderate application, 
be sufficiently instructed in the laws of England, 
if so be you give your mind to it. Seneca, in an 
epistle to Lucillus, says, " There is nothing but 

b See note B at the end of this Chapter. 



23 

what great pains and diligent care will get the 
better of." I know very well the quickness of your 
apprehension and the forwardness of your parts; 
and I dare say, that in those studies, though a 
knowledge and practice of twenty years is but 
barely sufficient to qualify for a judge , you will 
acquire a knowledge sufficient for one of your high 
quality, within the compass of one year; and in 
the mean while attend to, and inure yourself to 
martial exercises, to which your natural inclination 
prompts you on so much, and still make it your 
diversion, as shall best please you, at your leisure. 

c " Lucubrationes viginti annorum." 



Note B. 

" Proprio ore Rex nullus Angliae judicium proferre usus est." 
This passage was quoted by Sir E. Coke, at the celebrated 
conference between the houses of Parliament, respecting the 
liberty of the subject, for the purpose of shewing that the King 
can do nothing in his public capacity, without the agency of 
some responsible minister. This is a principle of the highest 
political importance, and it is maintained by the greatest autho- 
rities of the law of England, (2 Inst. St. West. 1. where Sir E. Coke 
again relies upon the passage in the text. Impeachment of Lord Danby, 
for a letter written by the order of the King, 2. Hargr. St. tr. Danby 
Memoirs. Harris's Car. II. Vol. V. p. 238. Answer to the King's 
Declaration, upon dissolving the Parliament, a. d. 1681. Vol. IV. 
Pari. Hist. Appendix. Har ley's Vindication of the Rights of the 
Commons. Somers's Tracts, W. 3. Speaker Onslow's Note respecting 
Lord Somers's Answer to his Impeachment in Burnet's Own Times, 
Vol. IV. 468, 479- St. 12 and 13, W. 3. ch. 2. §. 3.) When any 
judicial act is by a statute referred to the King, it is understood as 
required to be done in some court of justice, according to the law; 
for, in the view which has been taken of this subject by our most 
eminent legal writers, the King has committed all his judicial autho- 
rity to the several courts, and if any one would render himself to the 
judgment of the King in such case, where the King has committed 
all his judicial power to others, it would be to no effect. (2 Inst. 1 86, 
" Maundement del Roy," 3 Inst. 146, " Volunt le Roy," 4 Inst. 71, and 

what; 



24 

•what is there said respecting " Dominus Rex in earner & sud" 2 Inst. 46, 
"Nee super eumibimus." The Year Book ,2 Rich. Ill.fol. 11, andre- 
specting the invalidity of an arrest by virtue of a personal warrant from 
the Crown, 2 Shower 484.) Saint John observes, that although his 
Majesty is said to be the fountain of justice, and although all the 
justice within the kingdom flows from that fountain, yet it must 
run in certain and known channels, (Argument for Hampden, 
1 Hargr. St. tr.) With this Sir Robert Atkyns agrees, saying, 
that the light of justice was in the King, but was afterwards 
settled in courts, as the light of God in the sun and moon. 
(Tract on the Ecclesiastical Commission.) The principle of the 
incapacity of the King of England, to exercise any judicial func- 
tion, was magnanimously asserted by Sir E. Coke, in the presence 
of King James, notwithstanding that infatuated monarch pro- 
nounced the doctrine to be treasonable. (" Prohibitions del Roy," 
12 Rep. 3 Lodge's Illustrations, 346.) It is true, that at a period 
before the principles of the Constitution were settled upon a solid 
basis, instances are to be found, in which the kings of this country 
have personally assisted in the administration of justice, (Dial, 
de Scacc. lib. i. §. 4. Madox's Exchequer, ch. 3. Barrington's Observa- 
tions on 17 Edw. IV. Reeves's History of the Law. Edw. IV. 
Henry's History, Vol. V. p. 382. 3 Bl. Comm. 41 n. Paston Letters, 
Vol. IV. p. 77- Vol. II. p. 275. and concerning the right arrogated by 
James, of presiding in the Star Chamber, Brodie's British Empii e, 
Vol. I. p. 193.) Examples also of an interference on the part of the 
Crown, with the ordinary course of justice, may be adduced from 
the records of the Exchequer, which evince the expediency of every 
distinct provision, contained in the famous clause of Magna Charta, 
" Nulli negabimus, nulli vendemus, nulli differemus justitiam aut 
rectum." (Madox's Etch. ch. 12. §. 6.) Instances likewise in 
which the Sovereign has tampered with the public dispensers 
of justice, are to be met with in different periods of English 
history; and an indelible stigma is affixed to the house of Stuart, 
for having eclipsed every preceding and subsequent dynasty, 
in the shamelessness of the practice, and in the enormities of 
which they made it the instrument, (Luders's Tract on the 
Station and Character of the Judges in the l6th and 17th centuries. 
Foster's Dicourses, 199*200. Bacon's Letters. Burnet's Own Times 

Vol. I. p. 272.) So far, however, is the English Constitution 

abhorrent from any influence, which the Crown might exercise in 
the administration of justice, that the Judges are expressly prohib- 
ited by their oath, from obeying any injunctions, which may inter- 
rupt them in the discharge of their duties, (2 Inst. 56. 2 Edw. III. 
c. 8. 14 Edw. III. St. 1. c. 14. 20 Edw. III. c. 1 and 2. 11 Rich. II. 
c. 10. see also Lord Somers on Grand Juries, p. 111. et. seq.) The 
Statutes, which require the Judges to persevere in this independ- 
ent line of conduct, may be enforced by means of a particular 
writ, entitled "De Procedendo in Judicium." [Fitz. Nat. Brcv. 

153 b. 



25 

153 b. 240 (/.) The observation of these laws was impressively 
enjoined on all her Judges, by Queen Elizabeth ; and upon two 
remarkable occasions in her reign, she admitted the validity 
of the reasons they assigned, for refusing to be governed by her 
directions, in matters of judicature before them, contrary to their 
oaths. (Pre/, to 2nd. Rep. Anderson's Rep. p. 297- et. seq. 
Cavendish's Case, ibid. p. 152. Petyt. Jus Parliamentarium, p. 203, 
204. and on the subject of Queen Elizabeth's Warrants. 15 Vol. 
Rymer's Feed, and 1 Brodie's British Empire, p. 291 •) The 
spirited demeanor of Sir E. Coke, in maintaining the in- 
violability of his oath, upon this important point, on the 
occasion of the case of Commendams, has reflected immortal 
honor upon his name: whereas the compulsion arising from 
the expression of the Royal will, has never been deemed suf- 
ficient to justify or excuse the conduct of the administrators of 
justice ; for it would have the effect of extending to them the 
prerogative of doing no wrong, (Oldcastle's Remarks on English 
History, Letter 7. Proceedings against Herbert, Attorney General, 
tern. Car. I. 3 Brodie's British Empire, p. 305 ; and see a Letter of 
Gardiner to the Protector Somerset in Petyt. Jus. Pari. p. 200.) 
Since the Revolution, the independence of the judicial power of the 
State has been maintained with considerable success. The change 
which has taken place in the patents of the Judges, has divested 
the Crown of its hold upon the fears, whatever influence may be left 
to it, upon the hopes of the bench : and although the practice did 
not cease at so early a period of requiring the extrajudicial advice 
of the Judges, as the Counsellors of the Sovereign, upon matters 
which might afterwards be submitted to them, in their judicial 
capacity, yet this invidious prerogative has been long unexercised. 
The injustice of such an auricular taking of opinions, as Sir E. Coke 
denominates it, was properly felt and expressed by Chief Justice 
Hussey, in the reign of Henry the Vllth; and in commenting upon 
the language of that Judge upon this subject, Sir E. Coke asks, 
" How can they be indifferent, who have delivered their opinions 
beforehand, without hearing of the party, when a small addition 
or subtraction may alter the case; and how does it stand with 
their oath?" (3 Inst. 29 and 30. Case of Lord George Sackville's 
Court Martial, a. d. 1760. Appendix to Eden's Reports. Proceed- 
ings at Carlisle in the trials of the Rebels, a. d. 1715, Vol. III. 
Ellis's Original Letters ; and see respecting the Law and Precedents 
upon this subject, Hargr. Co. Litt. 110 a. 129 n. Fortescue's Rep. 
p. 300. For the ancient instances, see particularly the cases of 
Ship Money, and of the Regicides ; also Luder's on Treasons. In 
Hargrove's Preface to Hale's Jurisdiction of the Lords, p. 48, is 
detailed a remarkable secret conference between Charles I. arid his 
Judges, preparatory to passing the Petition of Right.) 



f 



26 



CHAP. IX 



The next thing, my Prince, at which you seem 
to hesitate, shall, with the same ease, be removed 
and answered, that is, whether you ought to apply 
yourself to the study of the Laws of England, or 
to that of the Civil Laws, for that the opinion is 
with them every where, in preference to all other 
human laws: let not this difficulty, Sir! give you 
any concern. A King of England cannot, at his 
pleasure, make any alterations in the laws of the 
land, for the nature of his goverment is not only 
regal, but political. Had it been merely regal, 
he would have a power to make what innovations 
and alterations he pleased, in the laws of the king- 
dom, impose tallages 2 and other hardships upon the 
people, whether they would or no, without their 
consent, which sort of government the Civil Laws 
point out, when they declare Quod piincipi placuit 
legis habet vigorern: but it is much otherwise with 
a king, whose government is political, because he 
can neither make any alteration, or change in the 
laws of the realm without the consent of the subject, 
nor burthen them, against their wills, with strange 

a " Tallagia." In Sir E. Coke's commentary upon the disputed 
statute " de tallagio non concedendo," it is observed that tallagium 
is a general word including all subsidies, taxes, tenths, fifteenths, 
impositions, or other burthens or charges." For the meaning of 
tallage, according to a more confined use of the expression, see 
Madox's Exchequer, ch. 17. An enquiry into the history of the 
imposition of tallage, properly so called, is calculated to throw 
considerable light on the early representation of boroughs, and 
on the distinction anciently existing between the taxes levied on. 
shires, and those according to which other divisions of the country 
were assessed. (Report of the Lords' Committees respecting the 
Peerage, p. 239, 271. Luder's Tracts, Vol. II. p. 307- Hallam's 
Middle Ages, Vol. II. p. 23.9, 240.) 



27 

impositions, so that a people governed by such laws 
as are made by their own consent and approbation 
enjoy their properties securely, and 'without the 
hazard of being deprived of them, either by the 
king or any other : the same things may be effected 
under an absolute prince, provided he do not de- 
generate into the tyrant. Of such a prince, Aris- 
totle, in the third of his Politics, says, " It is better 
for a city to be governed by a good man, than by 
good laws." But because it does not always happen, 
that the person presiding over a people, is so quali- 
fied, St. Thomas, in the book which he wrote to 
the king of Cyprus, (De Regimine Principum,) 
wishes, that a kingdom could be so instituted, as 
that the king might not be at liberty to tyranize 
over his people; which only comes to pass in the 
present case ; that is, when the sovereign power is 
restrained by political laws. Rejoice therefore, my 
good Prince, that such is the law of that kingdom 
to which you are to inherit, because it will afford 
both to yourself and subjects, the greatest security 
and satisfaction. With such a law, saith the same 
St. Thomas, all mankind would have been governed, 
if, in the Paradise, they had not transgressed the 
command of God. With the same was the whole 
nation of the Jews governed, under the theocracy, 
when God was their king, who adopted them for 
his peculiar people : till, at length, upon their own 
request, having obtained another sort of king, they 
soon found reason to repent them of their foolish 
and rash choice, and were sufficiently humbled 
under a despotic government 1 * : but, when they had 

b This circumstance in Jewish history, did not escape the 
writers on the side of the Parliament, in the time of the civil war ; 
and they have accordingly availed themselves of it with much 
ingenuity. (See Milton's Tenure of Kings and Magistrates ; and 
the Defensio pro Populo Anglicano.) The reader will find some 
curious observations respecting the theocracy of the Jews, by the 
eccentric author of the Oceana, in his Treatise upon the Art of 
Lawgiving, Book II. 



28 

good kings, as some there were, the people pros- 
pered and lived at ease; but when they were other- 
wise, their condition was both wretched and without 
redress. Of this you may see a particular account 
in the Book of the Kings. This subject being 
sufficiently discussed in a small piece I formerly drew 
up on purpose for your use, concerning the Law 
of Nature, I shall forbear at present to enlarge. 



This Chapter is very memorable on account of the repeated 
reference which has been made to it, in arguing many great 
constitutional questions in Parliament, and in the Courts of 
Westminster Hall. In the struggle which was maintained in 
the reign of James, against arbitrary impositions at the Ports, 
great stress was laid upon the authority of Fortescue, in this 
part of his work. The Judges who formed a conspicuous 
exception to a profligate bench, that abandoned the liberties 
of the nation in the celebrated case of Ship Money, founded 
their arguments on the principles of the Constitution which are 
here maintained ; and made a proud appeal to the writings of 
the Chancellor of Henry the Sixth. Indeed, whoever will 
examine the collection of the State Trials and the parliamentary 
history, with this view, will be satisfied that the benefit which 
the nation has derived from the legal authority of Fortescue, 
in settling the prerogative on a basis at once advantageous 
to the subject and secure to the Prince, is not inferior to that 
for which it is indebted to the philosophical reasonings of 
Locke. 

That this fundamental principle in the English Constitution, 
of no man being compelled to relinquish his property without 
his consent, was a part of the Mos Majorum prevalent in this 
country from the earliest times, cannot be proved by a more 
unimpeachable authority than Fortescue; in confirmation of 
whom, Sir E. Coke repeats in several parts of his works the 
following maxim of the common Law, " Le commun ley ad 
tielment admeasure les prerogatives le Roy que ilz ne tollerent 
ne prejudiceront le inheritance d'ascun, (2 Inst. 63. 3 Inst. 84. 
See also Plowden 230.) The same principle is also explicitly 

and 



29 

and energetically promulgated by the ancient Statute Law of 
this realm: if the laws of the Conquerer are of too remote 
and too doubtful authority to be relied upon in the consideration 
of this question, (See Observations on the Magna Chart a of William. 
Hallam's Middle Ages, Vol. II. p. 175.) If the Magna Charta of 
King John when viewed in conjunction with the charters of the 
succeeding Prince, does not form a basis sufficiently solid and 
unobjectionable for the purpose, (See Observations on the Clause 
respecting Scutage in the Charter of John, in the Report of the 
Lords' Committees respecting the Peerage.) If the Statute "De 
Tallagio non concedendo," be rejected by antiquarians of the 
highest name, (Blackstone on the Charters, Harrington, Reeves.) 
Yet the common right of the kingdom in this respect is ex- 
pressed in many ancient Acts of Parliament, in a manner 
scarcely less positive and distinct than it is enunciated in the 
Petition of Rights, and the Bill of Rights. (Preamble to the 
Petition of Rights. Barrington's Observations on the Statute of 
Confirmatio Chartarum. 2 Inst. 530, 532. Debate on the Case 
of Impositions, 11 Harg. St. tr. Case of Benevolences, ibid.) The 
examples of danegelt, hydage, murage and pontage, and the 
ancient customs on which are founded the chief arguments that 
were urged in support of prerogative taxation during the reign 
of the Stuarts, have been satisfactorily explained and answered, 
(See the Arguments on the Cases of Ship Money and Impositions 
in the State Trials. That the antiqua custuma had their commencement 
by Act of Parliament, 2 Inst. 59«) Instances are no doubt to be 
met with, in which the Crown has attempted to arrogate to 
itself the power of taxing the subject under the disguise of 
legal shadows and devices, as by grants to merchants, given 
for some equivalent advantage conferred on themselves, by 
loans and privy seals, by commissions under the pretence of 
State necessity, by dispensations with penal laws, by impo- 
sitions in the way of ordinance of Parliament, by monopolies, 
by benevolences levied compulsorily, or with an appearance 
of free will — all of which crafty stratagems have been repro- 
bated and repressed in specific Statutes, enacted on the occasion 
of the particular grievance; and to obviate every subtle con- 
trivance, through which the Sovereign, by means of any sinister 
inducement, might obtain money from the subject without the 
consent of Parliament, it seems to be settled by the legislature 
that all commissions from the Crown, to solicit and receive gifts, 
however voluntarily bestowed, are unconstitutional, (Hakewell's 
Argument in the Case of Impositions, and Margrave's notes upon 
that Case and the Case of Benevolences, in his edition of the State 
Trials— for the Law as settled after the Restoration, see Stat. 12 
Car. II. c. 4. §.6. 13 Car. II. c. 4.) It has been properly observed 
that the Constitution of this country is to be judged of by its 
laws, and not by particular instances which are to be found 

of 



30 

of the infraction of them, "judicandum est legibus non ex- 
emplis." But even the precedents which have usually been 
adduced in favor of the, existence of the power of arbitrary 
taxation in England, have been greatly misrepresented. Mr. 
Brodie in a recent publication has exposed many of the pre- 
valent errors upon this subject, which are to be found in the 
writings of Hume. The greater part of the examples in which 
the subjects' right has been violated, are, when viewed together 
with all the concomitant circumstances of the occasion, of a very 
doubtful and qualified nature : whilst the authorities on the 
other hand which manifest the restraint upon the prerogative, 
in this respect, are numerous and conclusive. Kings of England 
have abstained from imposing taxes without the consent of 
Parliament, at times when every inducement was operating on 
their minds to resort to such a course had it been lawful : they 
have solicited assistance from the bounty of individuals and 
of Parliament, without any salvo of their right : moneys which 
the crown has obtained without the common consent, have been 
recovered by suits at law : Kings have acknowledged in Par- 
liament the impropriety of their infringing upon this undoubted 
privilege of the subject. Even that arbitrary monarch, Henry 
the Eighth, withdrew a commission which he had of his own 
authority issued to levy a tax upon the kingdom, and laid the 
blame upon his Minister Wolsey, of that flagrant encroachment 
of the prerogative. Judge Hutton in delivering his judgment 
upon the case of Ship Money, relates that Queen Elizabeth, a 
sovereign no less jealous of power than her father, sent her 
Privy Counsellors to all parts of the kingdom to countermand 
a commission which had been issued for levying a tax as soon as 
she was convinced of its illegality; the same Judge mentions 
that he as well as the others, who were forced to contribute on 
that occasion, had the sums which had been exacted refunded 
to them. This important constitutional principle was vigilantly 
guarded at the period of the Revolution by a particular clause 
in the Bill of Rights; and it was a laudable measure of the 
Parliament of William, to determine that he was to receive 
the revenue of the Crown as a gift from themselves, and not 

by way of succession from his predecessor. It has been 

justly observed by Burke, that the same attempts will not 
be made against a Constitution fully formed and matured, 
that were used to destroy it in the cradle, or to resist its 
growth during its infancy. But if any rash individual shall in 
future times harbour a thought of abetting a Sovereign of 
this country, in the long abandoned claim of arbitrary taxation, 
the impeachment of the Judges who concurred in the illegal 
proceedings against Hampden, will afford him an awful, but 
not a solitary, example in the annals of this country of the 
punishment which the national justice denounces against such 

persons 



31 

persons as have yielded themselves to be the instruments of 
despotic power in taking from the people of England, what 
they have not consented to give. 

But it is obvious that the liberties of a country, however 
cautiously they are provided for by existing institutions, would 
remain in an insecure condition, if it were in the power of the 
Sovereign to change the laws, or to suspend or dispense with 
them at his pleasure. It is upon the restrictions with which 
the prerogative is bound in this respect, that Fortescue, in the 
present Chapter, grounds his eulogium on the permanent ad- 
vantages, and the safety of the English Constitution. Before 
the time when Fortescue wrote, a king of England had attempted 
to invalidate a Statute on the ground that he only dissembled 
when he gave his assent to it. " Dissimulavimus, sicut oportuit, 
et dictum pretensum statutum sigillari permisimus hac vice," 
(Barrington's Observations on the 15 Edw. III. See also his Remarks 
on 10 Rich. II.) And an attempt had been made by a Prince of 
Wales, to impede the operation of a Statute by a particular entry 
upon the Parliament roll, (3 Inst. 325. Rnffhead's Preface to the 
Statutes. Lord Macclesfield's Trial, Sergeant Pengelley's Reply.) 
And several of our Kings had not scrupled to imitate a scan- 
dalous device first introduced in support of" the Papal usurpations, 
that of evading the laws of the country by means of a "non 
obstante," (Sir R. Atkyns on the Dispensing Power. Luder's 
Tract on the same Subject.) But the authority of Fortescue 
will be noticed as being strikingly repugnant to such illegal 
and unworthy practices: and when he was Chief Justice he 
vindicated, by his conduct, the opinions which his book contains; 
for in the Star Chamber he strenuously opposed an appointment 
of the Crown, which had been made in contravention of a 
Statute of the realm, (2 Inst. 55g.) It is true that some great 
lawyers have recognized the legality of the dispensing power 
in special cases, and within particular limits : and under these 
restrictions it is treated as indisputably appertaining to the 
Crown by Sir E. Coke, (Co. Litt. 120. 3 Inst. 154. Sir T. Smith de 
Rep. lib. ii. c. 3. Thomas v. Sorrel. Vaugharis Rep. and the references 
in Hargr. Co. Litt. 120. a. n. 3 and 4. See a Dispensation by Let- 
ters Patent in Fortescue's time for Discovering the Philosopher's 
Stone, 4 Inst. 74.); but he has pointed out many pernicious effects 
arising from the exercise of it ; and on an important occasion, 
he reprobated, in the most forcible manner, the notion that a 
general power of altering the laws was a part of the royal pre- 
rogative; supporting his opinion mainly upon what Fortescue has 
written on the subject in the present Chapter. (Case of Pro- 
clamations, 12 Rep. See also 3 Inst. ch. 86.) The doctrine in 
the text is utterly inconsistent with the position advanced by 
Chief Justice Herbert, in the time of Charles II. " that the 
laws of England are the King's laws, and that therefore it is 

the 



32 

the inseparable prerogative of the Kings of England to dispense 
with them." But is in complete unison with the principles of the 
Constitution, as established by the Bill of Rights ; according to 
which the dispensing and suspending powers, except where they 
are specially conferred by Parliament, are abolished, whatever 
shape they may assume, or under whatever pretext they may 
be veiled. (See further on this subject, Atkyns on the Dispensing 
Power. Hurd's Dialogue on the Constitution. Cases of Sir Edward 
Hales, and of the Seven Bishops in the State Trials. Proceedings 
in Parliament relative to the Declarations of Indulgence, tern. 
Car. II. and Jac. II. Clarke's Stuart Papers, Vol. II. p. 80 : and see 
Hargr. Co. Litt. 120 a. n. 4. the peculiar manner in which the Dis- 
pensing and Suspending Powers are noticed in the Declaration of 
Rights, and the Bill of Rights. For the Proceedings in Parliament 
after the Revolution with respect to the Dispensing Power, See 
Gray's Deb. Vol. IX. p. 297 to 307- 314 to 332. 336 to 344, 396. 
Chandl. Deb. Vol. I. p. 394.) 



33 



CHAP. X. 



Prince. How comes it to pass, my Chancellor, 
that one king may govern his subjects in such an 
absolute manner, and a power in the same extent 
is unlawful for another king : seeing kings are equal 
in dignity, I am surprized that they are not likewise 
equal in the extent and exercise of their power. 



C 



34 



CHAP xr. 

THE CHANCELLOR'S ANSWER. 



Chancellor. I have. Sir! in the small piece 
referred to, sufficiently made appear, that the king 
who governs by political rules has no less power 
than him, who governs his subjects at his mere will 
and pleasure; yet, that the authority which each has 
over their subjects is vastly different, I never dis- 
puted it. The reason of which, I shall, in the best 
manner I can, endeavour to explain. 



35 



CHAP. XII 



Formerly, men who excelled in power, being 
ambitious of honor and renown, subdued the nations 
which were round about them by force of arms; they 
obliged them to a state of servitude, absolutely to 
obey their commands, which they established into 
laws, as the rules of their government. By long 
continuance and suffering whereof, the people, 
though under such subjection, finding themselves 
protected by their governors from the violence and 
insults of others, submitted quietly to them, thinking 
it better to be under the protection of some govern- 
ment, than to be continually exposed to the ravages 
of every one, who should take it in their heads to 
oppress them. From this original and reason some 
kingdoms date their commencement, and the persons 
invested with the power, during such their govern- 
ment, a regendo (from Ruling) assumed and usurped 
to themselves the name of Rex (Ruler, or King) and 
their power obtained the name of Regal. By these 
methods it was, that Nimrod first acquired to himself 
a kingdom, though he is not called a king in the 
Scripture, but, a mighty hunter before the Lord. 
For, as an hunter behaves towards beasts, which 
are naturally wild and free; so did he oblige mankind 
to be in servitude and to obey him. By the same 
methods Belus reduced the Assyrians ; so did Ninus 
by the greatest part of Asia: thus the Romans 
arrived at universal empire : in like manner kingdoms 
began in other parts of the world. Wherefore, when 
the children of Israel desired to have a king, as all 
the nations round about them then had, the thing 

C 2 



36 

displeased God, and he commanded Samuel to shew 
them the manner of the king who should reign over 
them, and the nature of his government; that is, 
mere arbitrary will and pleasure, as is set forth at 
large, and very pathetically, in the first Book of 
Samuel. And thus, if I mistake not, most excellent 
Prince, you have had a true account how those 
kingdoms first began, where the government is 
merely Regal: I shall now endeavour to trace the 
original of those kingdoms, where the form of 
government is political; that so, the first rise and 
beginning of both being known, you may more easily 
discern the reason of that wide difference which 
occasioned your question. 



37 



CHAP. XIII. 



St. Austin, in his book, de Civitate Dei, has it, 
" That a people is a body of men joined together 
in society by a consent of right, by an union of 
interests, and for promoting the common good;" 
not that a people so met together in society can 
properly be called a body, as long as they continue 
without a head; for, as in the body natural, the 
head being cut off, we no longer call it a body, but 
a trunk; so a community, without a head to govern 
it, cannot in propriety of speech be called a body 
politic. Wherefore, the philosopher, in the first 
of his politics, says, ^Whensoever a multitude is 
formed into one body or society, one part must 
govern, and the rest be governed." Wherefore, 
it is absolutely necessary, where a company of men 
combine and form themselves into a body politic, 
that some one should preside as the governing 
principal, who goes usually under the name of 
King. In this order, as out of an embrio, is formed 
an human body, with one head to govern and control 
it; so, from a confused multitude is formed a regular 
kingdom, which is a sort of a mystical body, with 
one person, as the head, to guide and govern. And, 
as in the natural body (according to the philosopher) 
the heart is the first thing which lives, having in 
it the blood, which it transmits to all the other 
members, thereby imparting life, and growth and 
vigour ; so, in the body politic, the first thing which 
lives and moves is the intention of the people, having 
in it the blood, that is, the prudential care and pro- 
vision for the public good, which it transmits and 



38 

communicates to the head,, as the principal part; 
and to all the rest of the members of the said body 
politic, whereby it subsists and is invigorated. The 
law, under which the people is incorporated, may 
be compared to the nerves or sinews of the body 
natural; for, as by these the whole frame is fitly 
joined together and compacted, so is the law that 
ligament (to go back to the truest derivation of the 
word, lex a ligando) by which the body politic, and 
all its several members are bound together and 
united in one entire body. And as the bones, and 
all the other members of the body preserve their 
functions, and discharge their several offices by the 
nerves; so do the members of the community by the 
law. And as the head of the body natural cannot 
change its nerves or sinews, cannot deny to the 
several parts their proper energy, their due pro- 
portion and aliment of blood; neither can a king, 
who is the head of the body politic, change the laws 
thereof, nor take from the people what is their' s, by 
right, against their consents 3 . Thus you have, Sir, 
the formal institution of every political kingdom, from 
whence you may guess at the power which a king 
may exercise with respect to the laws and the 
subject. For he is appointed to protect his subjects 
in their lives, properties and laws ; for this very end 
and purpose he has the delegation of power' from the 
people; and he has no just claim to any other power 
but this. Wherefore, to give a brief answer to 
that question of your's concerning the different 

' In Hobbes's Leviathan, a metaphor is pursued at great 
length, which closely resembles the one contained in the text ; 
and in another part of his singular work, that writer explains the 
generation of the great Leviathan, or a commonwealth, very- 
much in the same manner, that Fortescue accounts for the 
origin of a State. But these authors are at total variance, 
in the principles of government, which they deduce from their 
views of the formation of society, (See Clarendon's Survey of the 
Leviathan, for the Propositions contained in that work which are 
subversive of liberty, p. 190.) 



3i) 

powers which kings claim over their subjects, I am 
firmly of opinion that it arises solely from the 
different natures of their original institution, as 
you may easily collect from what has been said. 
So the kingdom of England had its original from 
Brute and the Trojans, who attended him from 
Italy and Greece, and became a mixt kind of 
government, compounded of the regal and political*. 
So Scotland, which was formerly in subjection to 
England in the nature of a dutchy, became a govern- 
ment partly regal, partly political . Many other 

b "Brute and the Trojans." This hero was supposed to be 
the great grandson of JEneas: the first account of him is in 
the History of Geoffrey of Monmouth, who in the reign of 
Henry the Second, published a History of Britain, translated, 
as he pretends, out of the British tongue. The story may 
be perused in most of the old- Chronicle writers, and even 
Milton has introduced it, into his History of England : White- 
locke, in his notes upon the Parliamentary Writ, gravely rests 
a part of his speculations upon the truth of that tradition; 
and some writers have been so persuaded of the real existence 
of this personage, as to engage in a controversy, respecting his 
coat of arms. The city of London, availed themselves of the 
fiction, in several of their petitions, for the purpose of referring 
the origin of their customs and privileges, to the times of ancient 
Troy. Camden in his Britannia, says, " That to reject the story, 
would be to wage war against time, and fight against a received 
opinion;" he has, however, adduced several arguments, which 
divest the tradition of every title to belief. The circumstances 
of the history of Brute, have suggested to several persons 
the design of an epic poem, and have been frequently celebrated 
in verse, (Lord Teignmouth's Life of Sir W. Junes, Appdx. John- 
son's Life of Pope, p. 84. Verses of Gildas in Virunnius's History, 
p. 6. Drayton's Polyolbion. And see further concerning this story, 
Selden's Notes to Drayton's Polyolbion. Leyland's Assertio Arturii, 
p. 8. Sir W. Temple's History of England. Letter of Edw. I. to 
Pope Boniface. X Scriptt. 2483. For the Claim of the City, Stow's 
Survey, p. 6.) 

c The question respecting the subjection of Scotland to the 
English Crown, has given rise to a multitude of treatises, and has 
been advocated on different sides, by authors of high literary 
reputation. A short statement of the authorities, upon which the 
question depends, will be found in Dr. Duck's Treatise, " de Usu 
et Auctoritate Juris Civilis:" and it is a necessary caution, in 
reading the text of Fortescue, to bear in mind, that Rapin, who 
collects the proofs at large, on both sides, in his history, decides 
the case in favour of the Scotch. 



40 

kingdoms, from the same original, have acquired the 
same form of government; whence Diodorus Siculus, 
in his second book of Ancient History, concerning the 
Egyptians, says thus : ei The kings of Egypt originally 
did not live in such a licentious manner as other kings, 
whose will was their law: but were subject to the 
same law, in common with the subject, and esteemed 
themselves happy in such a conformity to the laws." 
For, it was their opinion that many things were done 
by those who gave a. loose to their own will, which 
exposed them to frequent and great dangers and 
disadvantages 3 . The same author in his fourth book 
writes thus: "He who is chosen king of Ethiopia 
leads a life conformable to the laws, and behaves 
in every respect according to the customs of his 
country, neither rewarding, or punishing any one; 
but according to the laws handed down from his 
predecessors." In like manner he writes concerning 
the king of Saba in Arabia Felice: in the same 
manner concerning other kings in ancient history; 
who, pursuing the same methods of government, 
reigned prosperously and with reputation. 

a With the same sentiments, Voltaire writes to the king of 
Prussia. 

Ouvrons du monde entier les annales fideles, 

Voyons-y les tyrans; ils sonttous malheureux: 

Les foudres qu' ils portaient dans leurs mains criminelles 

Sont retombes sur eux. 
Ils sont morts dans l'opprobe, ils sont morts dans la rage — 
Mais Antonin, Trajan, Marc-Aurele, Titus, 
Ont eu des jours sereins, sans nuit et sans oragc. 

Purs comme leurs vermes. 



41 



CHAP. XIV, 



Prince. You have, my good Chancellor, with 
the perspicuity of your discourse, dispelled that 
darkness with which my understanding was obscured, 
and I now perceive plainly, that no nation ever 
formed themselves into a kingdom by their own 
compact and consent, with any other view than 
this, that they might hereby enjoy what they had, 
against all dangers and violence, in a securer manner 
than before: and consequently, they would find 
themselves disappointed of their intention, if after- 
wards the king they had so set over them should 
despoil them of their properties, which was not 
lawful for any of the community to do before such 
appointment made. And the people would be in 
yet a more dismal state, in case they were to be 
governed by strange and foreign laws, such as 
they had not been used to, such as they could not 
approve of: more especially if those laws should 
affect them in their properties, for the preservation 
whereof, as well as of their persons, they freely 
submitted to kingly government; it is plain, that 
such a power as this, could never originally proceed 
from the people ; and if not from them, the king 
could have no such power rightfully at all : on the 
other hand, I conceive it to be quite otherwise with 
that kingdom which becomes so by the sole authority 
and absolute power of the king. In this case, the 
people become subject to him upon no other terms, 
but to obey and be governed by his laws, that is, 
his mere will and pleasure. Neither, Sir, has it 
slipt my memory, what you have elsewhere, with 



42 

solid reasons, demonstrated in your treatise, concern- 
ing the Law of Nature, that the power of both kings 
is in effect equal; seeing a possibility of doing* amiss, 
which is the only privilege the one enjoys above 
the other, can be called an addition of power, no 
other than a possibility to decay or die ; which, as 
it is only a possibility of being deprived of some- 
thing valuable, such as life or health, is for this 
reason rather to be called a state of impotency, 
a real weakness. " For power (as Boetius observes) 
is always for some good end or purpose ;" and there- 
fore to be able to do mischief, which is the sole 
prerogative an absolute prince enjoys above the 
other, is so far from increasing his power, that it 
rather lessens and exposes it. The blessed spirits 
above, which are already fixed in their seats of 
happiness, and put beyond a possibility of sinning, 
are, in that respect, superior to us in power, who 
are always liable to do amiss, and to work iniquity 
with greediness. It only now remains to enquire, 
whether the law of England, to the study whereof 
you invite me, be as well adapted and effectual for 
the government of that kingdom, as the Civil Law 
(by which the holy Roman Empire is regulated) 
is generally thought to be, for the government 
of the rest of the world. Satisfy me but in this 
point by some clear and convincing proof; and 
I will immediately apply myself to the study you 
propose, without troubling you with any more of 
my scruples a . 

a Fortescue, in the preceding Chapters, attempts to account for 
the characteristic principles of the English Constitution, by 
referring to the circumstances, which he supposes to have 
attended the first institution of civil government in the Island : 
so most authors, who have written upon the subject of poli- 
tical institutions, have founded their theories on an imaginary 
state of nature, out of which they suppose men to have passed 
into a state of civilized society. The descriptions which have 
been given of a state of nature, are as various as the systems 

of 



43 

of which it has formed the basis. Hobbes, Locke and Rousseau, 
all differ from each other, in the manner in which they represent 
this condition of mankind ; whilst other writers, apparently with 
more reason, have considered the idea of a state of nature, 
to be altogether negative. The confused and contradictory 
notions of Blackstone, respecting the institution of government, 
as arising out of the state of nature, have been ably animadverted 
upon by Mr. Bentham; and the subject has been discussed 
with much talent, in an interesting treatise by a foreign writer, 
upon the influence of political theories in modern Europe, 
(Heeren, ueber die Entstekung, die Ausbildung und den praktischen 
einfluss der politischen theorieen in dem neueren Europa.) It will 
perhaps be thought, that the political order which we con- 
template in England, is not to be attributed to the circum- 
stances that accompanied the transition of our ancestors from 
out of the state of nature, to one of social life and civil govern- 
ment; nor to any balance between the monarchical, aristocratical 
and democratical powers, which the sagacity of our forefathers 
may have framed ; but that it has been the gradual result of time 
and experience ; the passions and the wants of man combined 
with the various emergencies of his situation. It is true, that 
the prudence and good sense of our countrymen, have always 
made them slow to adopt any alteration of institutions, which 
have been found not incompatible with national happiness, if 
not productive of it in themselves, during a succession of ages ; 
that they have indignantly resisted every attempt at innovation 
in their government, by arbitrary means : and accordingly the 
paradox of Fielding, "that the Constitution of this Island is 
nothing fixed, but just as changeable as the weather," may be 
thought to have been deservedly reprobated by Sir W. Jones. 
Nevertheless, it will probably be considered, if we trace the pro- 
gress of our Constitution, that its principal advantages have arisen 
from the frequent occasions upon which it has yielded to the 
changes prescribed by public opinion. We may, consequently, 
hesitate to adopt the account, which is given in the text, of 
the formation of the English Constitution: but no praise can 
be too ample for the explanation which Fortescue has left us, 
of the principles, which, in mixed monarchies, ought to influ- 
ence the governors and governed, and which constitute the 
sole legitimate ground of the subject's obedience. The true 
" tenure of Kings and Magistrates," is not less explicitly and 
boldly asserted, in the preceding chapter, by the Chancellor 
of Henry the Sixth, than by the immortal advocate of the 
English people. The sentiments of Algernon Sidney were 
not more inimical to the power of tyrants, or more repugnant 
than those of Fortescue to the abject language of the Oxford 
decree, or that which disturbed the last moments of Russel. 
And when the Chancellor writes, " Ad tutelam legis subditorum, 

ac 



44 

ac eorum corporum et bonorum Rex hujusmodi erectus est, 
et hanc potestatem a populo effluxam ipse habet, quo ei non 
licet potestate alia suo populo dominari," he maintains the 
same fundamental principle of government, which when it 
was developed and vindicated by Locke, ensured to that great 
philosopher the lasting gratitude of his country, and the admi- 
ration of Europe. It is important to observe the entire absence 
from the writings of Fortescue, of those obscure and mystical 
definitions of the prerogative, which, in after times, had such 
a fatal influence in preventing the King and the people from 
understanding, and thereby appreciating each others rights, as 
being, in fact, their own. The simple description of royal power 
given in the text, is incompatible with the metaphysical distinction 
of James, between a king in abstracto, and a king in concrete; 
nor does it more accord with the notions respecting the pre- 
rogative promulgated by Cowell, and for which he incurred 
the censure of the Parliament; and it is totally inconsistent 
with the doctrine, that the little finger of the King is heavier 
than the loins of the law, and that every political institution 
and regulation, must give place to the prerogative, as being 
endued in this respect with power, like that of the strong 
man Samson, who though he was bound by his own consent, 
could not be held under restraint when an emergency arose. 
(The Trew Law of Free Monarchies, and Speech at Whitehall 
a. D. 1609« K. James's Works. Cowell' s Interpreter, Art. Prero- 
gative, Parliament, King. Sir J. Davis on Impositions. Strafford's 
Impeachment. St. Tr. Strafford's Letters and Disp. Vol II. p. 388, 
Letter to Judge Hutton.) The King's prerogative is nothing more 
than the King's law: "for example," says Selden, "if you 
ask whether a patron may present to a living after six months 
by law, I answer no; if you ask whether the King may, 
I answer he may by his prerogative, that is, by the law that 
concerns himself in that case." {Selden' s Table Talk Tit. Pre- 
rogative. Resolution of the Judges in the Case of Proclamations, 
12 Rep. '• Political Reflections," by Saville, Lord Halifax.) Locke 
has observed, that in the infancy of Commonwealths, the Govern- 
ment is almost all prerogative. The restrictions which are subse- 
quently imposed upon the executive power, are to be regarded 
as improvements in the legislation of the country, tending to 
confine the authority of the chief magistrate, to such a measure 
and extent, as is indispensible for the proper execution of his 
trust; they cannot reasonably be deemed invasions upon his 
established rights. And therefore a Prince of the Stuart family, 
could have no just claim to the extensive prerogatives enjoyed 
by the Tudor line, when it became manifest, that the sentiments 
of the nation were averse to his possessing them. A wise 
people will foresee numberless evils, of a frightful character, 
that may arise from a rash diminution of the prerogative : a free 

nation, 



45 

nation, will never suffer themselves to be told that they do not 
possess a legitimate right to alter, to curtail, or to annihilate 

it. The doctrines in the text, were not propagated for the first 

time by Fortescue, with the intention of captivating the affec- 
tions of his countrymen, in favour of an exiled Sovereign, as 
Sir John Finch suggested; but they will be found to be no 
less unequivocally asserted, in the more ancient treatises of 
Bracton and Fleta, (See the principal Passages to this effect in 
these Authors, referred to in Hallam's Middle Ages, c. 8. 
Milton's Defensio Pro. Pop. Angl. and Hurd's Dialogue on the 
Constitution. The Mirror regards the King as being under the 
protection of the Law, in the same manner as an Infant, ch. 4. §. 22.) 
And the same opinions are maintained by Fortescue, in his 
work upon political monarchy, which he published after his 
reconciliation with Edw. TV. The notion of the divine right 
of kings, had indeed been promulgated in England, previous 
to the time when Fortescue wrote, (Bishop of Carlisle's Speech 
on the Deposition of Rich. II. Hayward's Life of Henry IV.} 
A parliamentary title to the throne, however, became esta- 
blished on more than one signal occasion, ( Brief History of the 
Succession, Somer's Tracts. Discourse iv. in Foster's Crown Law.) 
And the deference to the authority of Parliament, evinced by 
princes in the heat of victory, in the raptures of a successful 
Revolution, and before the armies could be disbanded, had stampt 
a remarkable feature on the early history of this country. (Old- 
castle's Remarks on English History, Letter 8.) Neither did the 
opinion of a divine and indefeasible right in kings, make much 
progress until a comparatively late period. Sir Thomas More, in 
a remarkable discourse, which he held with the Solicitor General, 
respecting the supremacy, treats the subserviency of the right 
of the Crown to that of Parliament, as a truth not to be disputed ; 
and by an early Statute of Elizabeth, it was made treason, to 
call in question the power of Parliament to alter the succession. 
It has been conjectured, that the circumstances which attended 
the reception of the Reformation into England, first rendered 
prevalent this opinion, (Hurd's Dial, on the Constitution.) The. 
peculiar nature of the title of the house of Stuart to the throne, 
may have contributed materially to disseminate it, (Burnet's Own 
Times, last Edition, Vol. III. 382 n. Hargrove's Preface to Hale's 
Jurisdiction of the Lords, 145 n. Luder's Tract on the Will of 
Hen. VIII.) It is called in a speech of Lord Shaftsbury's, a 
Laudean Doctrine; and certainly that prelate conspired with 
his Sovereign, to sanction the delivering of tenets so heinous in 
their nature from the pulpit: a profanation of the religious 
feeling of the country, only to be paralleled by the introduction 
of them as articles into national oaths, (Transactions respecting 
Manwaring and Sibthorp, Tern. Car. I. Progress of Arbitrary 
Power, by Andrew Marvel. Letter from a Person of Quality, Tracts 

Tern. 



46 

Tern. Car. II. Debate about the Subscription to Passive Obedience in 
Echard's History, Vol. III. p. 379- et seq. and Act of Uniformity, 
the Corporation Act, Militia Act, and Five-Mile Act!) It is to a 
convocation held in the time of James I, that the origin of the 
patriarchal theory of government is to be referred ; which, when 
it was afterwards supported by Filmer, had a practical influence, 
and acquired a celebrity, that can only be accounted for, by its 
peculiar adaptation to the reading and genius of the times. — The 
debates upon the subject of the exclusion, must have contributed 
very much to enlighten the understandings of men, and to teach 
them to separate the objects of government, from the instruments 
by means of which those objects are to be obtained; but it 
was reserved for the event of the Revolution, practically to 
convince mankind of the happiness which a nation may reap, 
by resolving, at a fit crisis, to exchange the manager of the 
public trust, rather than frustrate the purposes for which he 
was invested with power. The distinguished Statesmen, who 
contributed to renovate the Constitution of this country, at the 
period of the Revolution, effected no doubt an important change 
in the opinions of the nation, respecting the true ends of 
Government, in bringing back the minds of men to the liberal 
views and principles, which were to be learnt from a writer of 
the age of Henry the Sixth. And it is no disparagement of the 
high merit, which will always be ascribed to them, by a grateful 
nation, if, in the present day, we are struck with a sense of 
impropriety, perhaps of the danger, of resting the indestructible 
privileges of mankind, upon the fiction, adopted by them, of 
an original compact, (Harduick's State Papers, Vol. II. p. 401. 
SacheverelVs Trial, Hargr. St. Tr. Burke's Appeal to the Old fVhigs. 
Hume's Essays on Resistance, and the Original Compact. Bolinbroke's 
Dissertation on Parties. Paley's Political Philosophy. Bentham's 
Fragment on Government. Sir W. Temple's Essay on Government.) 
The manifesto of the Representatives of the United States of 
America, when they declared their independence of Great Britian, 
expresses more correctly the dictates of nature and of wisdom. 
" We hold these truths to be self-evident, that all men are created 
equal, that they are endowed by their Creator With certain ina- 
lienable rights ; that among them are life, liberty, and the pursuit 
of happiness : that to secure these rights, governments are instituted 
amongst men, deriving their just powers from the consent of the 
governed: that whenever any form of government becomes de- 
structive of these ends, it is the right of the people to alter or 
abolish it, and to constitute a new government, laying its founda- 
tions on such principles, and organizing its powers in such form, 
as to them shall seem most likely to effect their safety and happi- 
ness." 



47 



CHAP. XV 



Chancellor. I observe, Sir, that you have 
eiven attention, and remember well what I have 
hitherto been discoursing upon, therefore you have 
the better title to receive an answer to your question. 
Know then, that all human laws are either the Law of 
Nature, Customs, or Statutes, which are also called 
Constitutions : but, the two former, when they are 
reduced into writing, and made public by a sufficient 
authority of the Prince, and commanded to be ob- 
served, they then pass into the nature of, and are 
accepted as constitutions or statutes, and, in. virtue 
of such promulgation and command, oblige the 
subject to the observance of them under a greater 
penalty than otherwise they could do. Such are a 
considerable part of the Civil Laws which are digested 
in great volumes by the Roman Emperors, and by 
their authority commanded to be observed : whence 
they obtain the name of the Civil Law, in like manner 
as all other imperial edicts or statutes. If therefore, 
under these three distinctions of the Law of Nature, 
Customs and Statutes, the fountains and originals 
of all laws, I shall prove the Law of England 
eminently to excel, then I shall have evinced it 
, to be good and effectual for the government of 
that kingdom. Again, if I clearly make out that 
it is as well accommodated for the good of that 
State, as the Civil Laws are for that of the empire 
then I shall have made appear, that the Law of 
England is not only an excellent law, but that, 
in its kind, it is as well chosen as the Civil Law. 
In proof of this, I proceed. 



48 



CHAP. XVI. 



The Laws of England, as far as they agree 
with, and are deduced from the Law of Nature, 
are neither better nor worse in their decisions than 
the laws of all other states or kingdoms in similar 
cases. For, as the philosopher says, in the fifth 
of his Ethics, "The Law of Nature is the same, 
and has the same force all the world over." Where- 
fore I see no occasion to enforce this point any 
farther; so now, the enquiry rests, what the customs 
and statutes of England are : and, in the first place 
we will consider and look into the nature of those 
customs*. 

a There is a fine passage in Cicero de Republics, descriptive 
of the Law of Nature. " Huic legi nee abregari fas est neque 
derogari ex hac aliquid licet, neque tota abrogari potest. Nee 
vero aut per senatum aut per populum solvi hac lege possumus. 
Neque est quserendus explanator aut interpres ejus alius nee erit 
alia lex Roma?, alia Athenis, alia nunc, alia posthac. Sed et omnes 
gentes et omni tempore una lex et sempiterna et immutabilis 
continebit, unusque erit communis quasi magister et imperator 
omnium Deus, ille legis hujus inventor, disceptator, lator : cui 
non parebit ipse se fugiet ac naturam hominis aspernatus, atque 
hoc ipso luet maximas pcenas etiam si cetera supplicia quae putan- 
tur, efFugint." lib. 3. §. 22. The subject of the Law of Nature 
has been treated of with great learning by the foreign Jurists, 
and some Authors of our own country have written profoundly 
upon it. (Bishop Cumberland de Lege Naturce. Tyrrel's Dis- 
quisition on the Law of Nature. Selden de jure Naturali et 
Gentium juxta Disciplinam Hebraorum. See also Bishop of Cloyne 
on Passive Obedience. First Book of Hooker's Ecclesiastical Polity.) 
The question whether there exist any uniform dictates of nature 
independent of the consideration of utility, is one which to the 
philosopher does not admit of a very easy solution. But every 

friend 



49 

friend to the institutions of his country, will watch, with vigilant 
care, an appeal to so vague a standard as that of natural right, 
in any question, which is capable of being determined by the 
municipal law. Much uncertainty and perplexity arising from 
this source, is to be found in our legal authorities. Thus some 
eminent lawyers have expressed an opinion that an Act of 
Parliament made against natural justice, or the law of God, 
is void, and the reason assigned is, that " leges naturae sunt im- 
mutabilia" and they are " leges legum." (Holxirt 87- 12 Mod. 687-) 
And hence questions have arisen, whether usury was against the 
law of God; the same of Commendams; whether a statute that 
no alms should be given, would militate against that law, and 
whether it enjoined that no excommunicated person should 
maintain an action : again, the Law of Nature has been thought 
to direct, that gifts ought to become void by reason of ingratitude. 
(3 Ingt. 151. Hob. 149- Doctor and Student. Dial. i. ch. 6. Dial. ii. 
ch. 45.) Perhaps Sir E. Coke may be considered to have carried 
this principle to a most dangerous extent, in the maxim which 
he so frequently repeats : " Nihil quod inconveniens est est 
licitum." From the same mode of reasoning is derived the distinc- 
tion between "mala prohibita" and "mala in se." (Thomas v. Sorrel 
Vaughan's Rep. Foster's Disc. Disc. ii. ch. 1. 12 Rep. 76. Lord 
Macclesfield's Speech on his Impeachment. Stillingjleet on Resig- 
nation Bonds, and see Taylor's Civil Law, 129 e t seq.) And 
partly from the same cause has arisen the great liberty which 
Courts of Justice have assumed, especially in ancient times, of 
construing Statutes by equity. (Hargr. Co. Lift. 24 b. n. Hatton 
on Statutes. Plowden's Comm. p. 465.) Blackstone in his Com- 
mentaries, treats of the Law of Nature as a branch of the Law 
of England, and as paramount to it in all cases in which they 
may conflict. (1 Bf. Comm. 42. Bentkam on Government, 109. 
Doctor and Student, Dial. i. ch. 5. See also the Case of Forbes v. 
Cochrane. 2 Barnewall and Cresswell's Rep. Protest oj the Lords 
on the Occasion of the Royal Marriage Act, 12 Geo. III.) Perhaps 
it will be thought that such an opinion has a tendency to en- 
courage Judges in directing their conduct by what Coke terms 
the crooked cord of discretion, rather than being guided by the 
golden metewand of the law. Examples abound in the History 
of this Country, in which the injunctions of the Law of Nature 
have been pleaded as a sanction for the most flagrant violations 
of Civil rights. It was the argument, used by Salmasius, to 
prove that Charles was not accountable for his arbitrary pro- 
ceedings : Finch adduced the Law of Nature in support of 
Ship Money: and in the celebrated declaration of James II. 
respecting liberty of conscience, it is urged as a reason to justify 
the dispensing power. In some instances of very rare occurrence, 
as, for example, the case of the " Postnati," in which the municipal 
laws are silent, it may become the duty of a Judge to enquire 

how 

1) 



50 

how foreign nations have legislated, or what individuals, eminent 
for their reason, have thought ; and he will properly consult the 
natural dictates of his own understanding, corrected and matured 
by reflection and experience: but it appears to be a dangerous 
principle, on any occasion, to abandon the plain sense of the 
Common Law, as handed down by received tradition, or the 
intentions of the Legislature, as collected by an interpretation 
of its language, consonant as well to good sense as to grammatical 
accuracy, for precepts extracted from the Code of Nature, in the 
tables of whose law, persons will be apt to believe that they can 
read whatever they wish to discover. 



51 



CHAP XVII 



The realm of England was first inhabited by 
the Britons; afterwards it was ruled and civilized 
under the government of the Romans; then the 
Britons prevailed again; next, it was possessed by 
the Saxons, who changed the name of Britain into 
England. After the Saxons, the Danes lorded it 
over us, and then the Saxons prevailed a second 
time; at last, the Normans came in, whose descend- 
ants obtain the kingdom at this day : and, during 
all that time, wherein those several nations and their 
kings prevailed, England has nevertheless been con- 
stantly governed by the same customs, as it is at 
present: which if they were not above all exception 
good, no doubt but some or other of those kings, 
from a principle of justice, in point of reason, or 
moved by inclination, would have made some alter- 
ation or quite abolished them, especially the Romans, 
who governed all the rest of the world in a manner 
by their own laws. Again, some of the aforesaid 
kings, who only got and kept possession of the 
Realm by the sword, were enabled by the same 
means to have destroyed the laws and introduced 
their own. Neither the laws of the Romans which 
are cried up beyond all others for their antiquity ; 
nor yet the laws of the Venetians, however famous 
in thfs respect, their Island being not inhabited 
so early as Britain; (neither was Rome itself at 
that time built;) nor in short, are the laws of any 

d 2 



52 

other kingdom in the world so venerable for their 
antiquity. So that there is no pretence to say, or 
insinuate to the contrary, but that the laws and 
customs of England are not only good, but the 
very best*. 



a This Chapter is quoted with great respect by Sir E. Coke 
in a Preface to his Reports, where he assents implicitly to every 
thing contained in it, and supports the opinion in the text by 
additional authorities. But Dr. Hickes has shewn that the great 
oracle of the law is not entitled to much deference in questions 
connected with the Saxon period : and Spelman in his Treatise 
upon Terms, controverts the notions of Fortescue upon this 
subject and treats them with ridicule. He refers to the laws 
of Hoel Dha, as exhibiting a model of the British customs 
which appear from thence to be inconsistent with our own. 
Some antiquarians, however, have found the rudiments of several 
of our institutions among the British Laws. (See Tracts by 
Mr. Jones and Mr, Tate, in Hearne's Collection.) In a Tract 
written by Mr. Hakewell, in which a passage in the text 
respecting the origin of our Laws, is cited, and said to be 
destitute of proof, the introduction of the Danish Law is much 
insisted upon, and, in that Gentleman's opinion, the Danish 
Law mingled with some points of the Saxon Law, and fewer 
of the Norman Law, constitute the Common Law now in use. 
On the other hand, Sir W. Temple, in the Introduction to 
his History, denies that any change of our Laws happened by 
the Danes. In the same place he makes mention of Fortescue 
having affirmed that our customs have been preserved through 
five Governments, and he observes that it is doubtful whether 
it can be so easily proved as affirmed, though it may be with 
more certainty of the three last. Selden in his Dissertation 
upon Fleta, has exhibited the extent to which the influence 
of the Roman Law prevailed in England, from the conquest 
of this Country by that Nation, to the reign of Edward III. 
(See also Duck de Ortu et Progressu Juris Civilis. Dr. Pettingal 
on Juries. Hallifax's Civil Law. Hurd's Dial, on the Constitution.') 
The frequent reference to the books of the Civil Law by our 
early writers upon legal subjects, has been noticed in a pre- 
ceding page. And in the present day these valuable records 
of legal wisdom are occasionally consulted, with a view to 
the determination of judicial questions. (Burnet's Life of Hale, 
p. 24. Lord Ellesmere's Case of the Postuati. Blackstone's In- 
troduction. 3 Burr. 1670. Comyn's Rep. p. 738. Eunotnus, 
Notes to Dial, i.) It is difficult to point out that precise portion 
of the Law, which existed in this country anterior to the Norman 

conquest. 



53 

conquest. Burke refers to that event as the great a?ra of our 
Laws; but Sir W. Temple on a consideration of what the 
country lost, what it preserved, and what it gained by the 
Norman conquest, is of opinion that the forms of our Govern- 
ment and Institutions were not materially changed at that 
time; and this agrees with what Sir Matthew Hale has written 
in his History of the Common Law. We read of four different 
species of law which are said to have been in force in the 
Saxon times, but the existence of this division of the laws 
has been much doubted by eminent legal antiquarians; and 
but little light can now be obtained respecting those com- 
pilations, called the " Domboes," which are known to have been 
made before the conquest: The Saxon Laws which compose 
the modern collections of Lambard and Wilkins have not all 
the same degree of credit for genuineness ; and the contrast 
which their contents present, with those of Glanville's Treatise, 
shew the establishment of very different principles of law in 
the time of Henry the Second, from any which they contain. 
A discussion concerning the laws that existed in this Country 
anterior to the conquest, has been warmly agitated in the 
enquiry respecting the antiquity of Juries; in the celebrated 
question relative to the introduction of feudal tenures into 
this country; and in the more important controversy regarding 
the origin of Parliament. Some investigations respecting other 
points involving a research into the changes introduced by the 
Normans in the Saxon Institutions, will be seen in Madox's History 
of the Exchequer, and Hickes's Prefatory Dissertation to his The- 
saurus; and much valuable information explanatory of the connec- 
tion existing between the Laws of England and those of Normandy, 
may be gathered from Hoiiard's Treatise entitled "Anciennes 
loix des Francois conservees dans les contumes Angloises." 
Some historical facts in the reign of William the Conqueror, 
shew that he professed on several occasions a respect for the 
national Institutions of the Saxons, and for the laws of Edward 
the Confessor : and perhaps the account given in the Dialogue 
of the Exchequer, respecting his proceedings in regard to the 
legislation of the country, will be received as being most pro- 
bably authentic. " Propositis legibus Anglicanis, quasdam re- 
probavit, quasdam autem approbans, illis transmarinas Neustria? 
leges quae ad regui pacem tuendam efficacissima? videbantur, 
adjecit." Burke has remarked in his Introduction to English 
History, the evil consequences that are to be ascribed to an 
opinion, which he says is hardly to be eradicated from the 
minds of our lawyers " that the English Law has been formed 
and grown up among ourselves; is quite peculiar to this Island ; 
and has continued in much the same state from an antiquity 
to which they hardly allow any bounds." It is true that Sir 
E. Coke in several parts of his writings, speaks of the English 

people 



54 

people as being as well in respect of their Civil Institutions 
as of their insular situation, "toto divisos orbe Britannos." 
But Bacon takes a pride in observing, "that our laws are as 
mixed as our language; ahd as our language is so much the 
richer on that account, so are the laws more complete." No 
writers have viewed more philosophically than Lord Bacon 
and Sir Matthew Hale, the alterations which must necessarily 
be made in the laws of a nation, during its progressive ad- 
vancement in refinement and greatness; none have insisted 
with more energy on the policy of revising those forms and 
institutions which the varying manners of the age, the new 
wants of society, or a more enlightened system of jurispru- 
dence render inexpedient. 



55 



CHAP. XVIII 



It only remains to be enquired whether the 
Statute Law of England be good or not. And, 
as to that, it does not flow solely from the mere 
will of one man, as the laws do in those countries, 
which are governed in a despotic manner; where 
sometimes the nature of the Constitution so much 
regards the single convenience of the Legislator, 
whereby there accrues a great disadvantage and 
disparagement to the subject. Sometimes also, 
through the inadvertency of the Prince, his inactivity 
and iove of ease, such laws are unadvisedly made 
as may better deserve to be called corruptions, than 
laws. But, the Statutes of England are produced 
in quite another manner: Not enacted by the sole 
will of the Prince, but, with the concurrent consent 
of the whole kingdom, by their Representatives 
in Parliament. So that it is morally impossible 
but that they are and must be calculated for the 
good of the people: and they must needs be full 
of wisdom and prudenee, since they are the result, 
not of one man's wisdom only, or an hundred, 
but such an assembly as the Roman Senate was 
of old, more than three hundred select persons 3 ; 

3 At a period, when tenure constituted the only right to 
a seat among the Barons, the number, whether of the greater 
or lesser nobility, depended upon principles, which were 
peculiar to the times. After the adoption of writs, but when 
a summons to Parliament did not confer an hereditary right, 
or even a right for the life of the individual to attend its 
meetings, the House of Peers, must have experienced consi- 
derable 



56 

as those who are conversant in the forms and method 
of summoning- them to Parliament, can more dis- 
tinctly inform you. And, if any bills passed into 
a law, enacted with so much solemnity and fore- 
sight, should happen not to answer the intention 
of the legislators : they can immediately be amended 
and repealed, in the whole, or in part, that is, 
with the same consent and in the same manner 
as they were at Jirst enacted into a law. I have 
thus laid before you, my Prince, every species 



derable fluctuations in the number of its members : accordingly 
we find, that, in the reign of Edw. I, the number of summonses 
generally amounted to eighty, whereas in the latter period 
oP his successor's reign, they sometimes were under forty, and 
never were as many as fifty. In later times, the Peerage has 
not remained stationary, and we read in the history of Queen 
Anne, that it received an addition of twelve members in one 
day, who were created for the purpose of supporting the 
measures of a particular administration. So the numbers of 
the House of Commons, must have greatly varied in early 
times, from the discretion which was formerly reposed in 
Sheriffs, as to the issuing of their precepts to boroughs ; from 
the excuses, by which particular towns exonerated themselves 
from the charge of appointing Representatives ; from the power 
invested in the Crown, of giving birth to the elective franchise, 
and which was exercised at least from the reign of Edw. IV, to 
that of Car. II. Historians do not appear to have attended suffi- 
ciently to the considerations which these circumstances suggest ; 
for the character of the two assemblies, both in respect of their 
relative situation to each other, and their collective capacity, must 
have been very different, at different times; and whilst the names 
of Parliament, Lords and Commons, have continued the same, the 
ideas they have been intended to represent, have undergone a va- 
riety of transmutations. The attention of the natron was drawn 
to this subject, in the reign of George I, on the occasion of 
the Bill, which was introduced for the purpose of limiting the 
number of the Peerage. (Selden's Titles of Honour. Madox's 
Baronia Anglica. Dugdale's Summonses to Parliament. Col lint's 
Claims. Hale's Jurisdiction of the Lords. Report of Lords' Com- 
mittees respecting the Peerage. Elsynge on Parliaments. White- 
locke's Parliamentary Writ. Brady on Boroughs. Madox's Firm a 
Burgi. Glanvilk's Reports. Merewellier on Boroughs. Coxe's Life 
of Walpole, and Pamphlets respecting the Peerage Bill, there referred 
to, Somcrs's Traits, George /.) 



57 

of the Laws of England;, you will of yourself easily 
apprehend their nature, whether they be good or 
not, by comparing them with other laws : and, when 
you will find none to stand in competition with 
them, you must acknowledge them to be, not only 
good laws, but such, in all respects, as you yourself 
could not wish them to be better*. 



b The leading features of the Constitution of Parliament, are 
described in this Chapter, in a manner very much the same 
as that, in which an author of the present day would represent 
them. The gradual formation, and settling of that assembly, 
according to the sketch here given of it, is a subject of very 
curious and difficult enquiry. Much learning and talent 
has been applied, to determine the question of the participation 
of the Commons, in the national councils, during the Saxon 
and Anglo-Norman period. Sir M. Hale, who was peculiarly 
qualified for developing this obscure subject, confesses that 
he is unable to do more than guess what was the ancient right, 
and form of Government, anterior to the time of Henry III. 
The nature of the political assemblies in the reign of that king, 
derives considerable illustration from an abundance of public 
records, and from the contemporary writings of two great 
authorities for History and Law, Matthew Paris and Bracton. 
After tracing the history of the branches of the Legislature, 
to the period of their first existence in a political capacity, 
much learned research has been pursued, with a view of 
ascertaining, by what authority, and according to what form 
of appointment, the individual members of either House have 
occupied their seats. An enquiry, which embraces in the 
House of Lords, the distinctions between the greater and lesser 
Barons, Barons of the old and new feoffment, Barons by tenure, 
investiture, writ, patent, and by Act of Parliament, Bannerets, 
Peers, together with the parliamentary rights of Bishops. 
And in the house of Commons, involves the consideration 
of the ancient Constitution of the County Courts; the early 
History of Towns, Leets, and Corporations; the manner in 
which the various classes of the community have been repre- 
sented at different periods, especially the tenants in ancient 
demesne, and the tenants of Peers; and the principle upon, 
which Burgesses were originally summoned to Parliament. 
After this examination of the Constitution of the Houses of 
Parliament respectively, a further object of investigation, has 
been the relative situation, in which the two branches of the 
Legislature, have stood to each other at different periods: which 
leads to the questions, respecting the division of the houses; 

the 



58 

the ancient manner of voting by the Knights; the right of 
judicature in the Lords ; the Constitution of the Three Estates ; 
and the nature of the several ancient councils of the King. 
It would be foreign to the purpose of this note, to dwell 
longer upon the topics, which have been briefly adverted to ; 
but it may not be thought irrelevant, to institute a short enquiry, 
respecting the period, at which Parliament appears by authentic 
records, to have been settled according to the form and Constitu- 
tion, which it had assumed, when Fortescue describes it: especially 
as it was in the reign in which Fortescue wrote, that the represen- 
tation of the Commons, had become an object of so great national 
importance, as to have occasioned the famous Statute, by which 
the election of Knights of the Shire is regulated in the present day; 
and a seat in Parliament, as it appears, both from the public 
history, and the private memorials of those times, often gave 
rise to an animated scene of contention. By a Statute of 
Edward II, a declaration is made, that every legislative measure, 
not sanctioned by the consent of the Kings, Lords, and Commons, 
should be void. The Peerage Committee of the Lords observe, 
that this is the first solemn Act they have discovered, by which 
the Constitution of the legislative assembly of the Realm, is 
distinctly described, subsequently to the Charter of John, 
which in their opinion, did not extend to require the common 
consent to all legislative measures, but only to the imposi- 
tion of Scutage: it is, however, material to observe, that the 
Statute of Edward II, states the provisions declared in it, 
to be according to custom. The same Committee refer to the 
reign of Edward III, for the first declaration in Parliament, 
that the Knights of Shires should be elected by all the free- 
holders of the County, Suitors of the County Court, though 
no definitive law seems to have been made upon the subject 
until the 7th of Henry IV: they advert to the proceedings 
relative to the deposing of Richard the Second, as indicating 
the time, from which Peers were considered to be separated, 
in their Parliamentary capacity, from the rest of the laity ; 
whilst the other tenants in chief of the Crown, who accord- 
ing to the Charter of John, were in some measure confounded 
with the nobility, as also the tenants of the Peers were intermixed 
with the mass of the laity, and were treated as a distinct 
estate, represented in Parliament, by the elected Knights, 
Citizens, and Burgesses. Mr. Hallam has noticed a precedent 
in the 9th of Edward IV, as affording the earliest authority 
for two important points of Parliamentary Law, that the 
Commons possess an exclusive right to originate money-bills, 
and that the King ought not to take notice of what is passing 

in Parliament. It is from these records, that the period 

may be collected, at which the Constitution of the Legislature 
of the Realm became completely settled. 



59 

It is often difficult to ascertain what has been enacted by 
the common consent of the Realm in ancient times. Sir E. Coke 
has shewn this by many examples in his 4 Tnst. and it is 
confirmed by Prynne's Animadversions upon that Work: The 
liberties of the subject, were, at one period of our history, 
believed materially to depend upon the authenticity of a dis- 
puted Statute, the Statute "de tallagio non concedendo," 
and, not to enumerate more instances to the same effect, at 
the impeachment of Lord Macclesfield, the validity of an 
Act of Parliament, which was not to be found in any Statute 
book, but was contained in the Parliament rolls, gave rise to a 
discussion, from its importance in sustaining the accusation against 
that illustrious offender. The Committee for the inspection of the 
public records, have given a particular detail of the various sources, 
from which the evidence respecting the authenticity of Statutes 
is derived : Sir M. Hale, in his History of the Common Law, 
has imparted many valuable directions, for forming a correct 
judgment in enquiries of this nature, which depend not more 
upon the inspection of records, than upon general and 
received tradition: and much valuable information upon this 
subject, may be collected from the discussions which have 
arisen, respecting the form of Statutes at particular periods; 
upon the presumption which may be made of the assent, 
of one or more branches of the legislature, when it is not 
expressed ; and upon the meanings, which are to be attributed 
to the term "Ordinance." (Hargr. Co. Lit. \5Q b. n. 2. and 
References to Prynne, ibid. Ruffhead's Preface to the Statutes. 
Elsynge on Parliaments. Whitelocke's Parliamentary Writ. Co. Litt. 
29 a. 2 Inst. 525. 644. 4 Inst. 25. Prince's Case. 8 Rep. Reeves's 
History of the Law, Edzv. III. Southampton Case, Douglas on 
Elections. Heywood's Vindication of Fox's History, p. 92.) It 
is worthy of observation, that in the reign of Henry VI. the 
practice became established of making up complete Statutes in 
the first instance, under the name of Bills, instead of the old 
petitions which were frequently very much altered after they 
had passed the Houses : this change may be considered an 

important circumstance in the History of the Constitution. 

A royal Proclamation was at one time supposed to possess a sort 
of legislative efficacy; although there does not appear to be any 
ground, for the statement of Hume, that the right of issuing 
proclamations, with the effect of laws, was acknowledged by 
lawyers, with a distinction restrictive of the authority of procla- 
mations to the life of the Sovereign, who emitted them : and that 
historian's imputations against the Tudors, for their tyrannical 
exercise of this power, have been canvassed by Mr. Brodie, 
in his recent Work on the British Empire. It appears from 
a treatise of Hale's, that proclamations were frequently issued 
with penalties, merely in terrorem. (Hale de P or tibus Maris, 

Pars, 



60 

Pars. Sec. ch. 9.) In the reign of Charles I, severe fines were 
levied upon individuals, for disobedience to proclamations which 
were grounded upon the most capricious and fanciful causes, (See 
some remarkable instances of this, in D' Israeli's Curiosities of 
Literature, from a Manuscript of D'Ewes. Stratford's Lett, and 
Disp. 2. p. 142. 2 RusJi. p. 28, 144, 289.) Clarendon relates, 
that under the government of that King, the same individuals 
in the capacity of Privy Counsellors sent forth proclamations, 
and afterwards in the character of members of the Star Chamber, 
in another room, punished the infraction of them. It is to the 
honor of Sir E. Coke, that he asserted an opinion, notwithstanding 
the opposition he experienced, on that occasion, from the disgrace- 
ful demeanour of the Lord Chancellor, and Lord Privy Seal, that 
the King could not change any part of the Common Law, or 
create any offence by his proclamation, and that there never 
was an indictment, which concluded " contra Regiam pro- 
clamationem." It is upon the authority of Fortescue, that 
his argument was principally founded, and he further mentions, 
that it was resolved in the same term, at a conference held 
between the Judges and the Privy Council, that the King's 
Proclamation is neither Statute Law, Common Law, or Custom, 
the three parts of the Law of England ; that no offence could 
be created by it; and that the King has no prerogative, but 
that which the Law of the Land allows him. (12 Rep. Case of 
Proclamations, 3 Lodge f s Illustrations 364.) It is not surprising 
therefore, that an attempt in modern times to justify upon 
constitutional principles, an embargo laid on the ports, in 
time of peace, under the colour of a Royal Proclamation, should 
have been animadverted upon, with indignant eloquence in 
Parliament, or that the Legislature should have pronounced 
it contrary to law (Pari. Hist. a. d. 1766. Hargr. Pref. to Hale 
de Jure Maris.) A legislative power has sometimes been assumed, 
not only by the Sovereign, but also by the Houses of Parliament. 
A multitude of Treatises have been written upon the legality 
of the ordinance for the Militia, which was enacted during the 
great rebellion: Whitelocke details a celebrated debate upon 
the subject in his memorials, and at the Treaty of Uxbridge, 
he challenged Lord Clarendon, to a personal argument on the 
question. A House of Commons in the Reign of Charles II, 
promulgated their opinion, that a particular branch of the laws 
ought not to be put in execution : upon which proceeding Burnet 
observes, that it was thought to be a great invasion of the 
Legislature, and was to act like dictators in the State. Our 
judicial history exhibits several memorable instances, wherein 
an attempt by the House of Lords, to arrogate a power, with 
which the Constitution did not invest them, has met with a 
resolute and successful resistance. (Case of Skinner and tie 
East India Company, Case of Charles Knollis, Esq. claiming to 

. be 



61 

be Earl of Banbury, Case of Bridgman and Holt, See Hargrove's 
Preface to Hale's Jurisdiction of the Lords ;) and Lord Holt 
has left an example by his conduct, in the case of Ashby 
and White, of a similar unbending spirit, toward the encroach- 
ments of the Commons. The manner in which a Court of Law, 
ought to treat every assumption by one of the branches of 
the legislature of those powers, which appertain to them only 
when they are united, was properly expressed by Lord Mans- 
field, in the debate upon the address, a. d. 1770. He is re- 
ported to have said, that declarations of law, made by 
either House of Parliament, were always attended with bad 
effects, that he constantly opposed them when he had an 
opportunity, and never, in his judicial capacity, thought himself 
bound to honor them with the slightest regard, {See also the 
Debates in the Lords and Commons, on the Power of the Commons 
to Suspend the Execution of Law, a. d. 1784.) 



62 



CHAP XIX 



One thing only remains to be explained, con- 
cerning which you have raised some scruples, 
that is, whether the Laws of England are to be 
looked upon so useful, so well accommodated to 
the particular Constitution of England, as the 
Civil Imperial Laws are for that of the Empire. 
I remember a saying of yours, my Prince, that 
comparisons are odious; and therefore I am not 
very fond of making them : you will see better 
reasons whereby to form your judgment, and 
which of the two laws may deserve the preference, 
by considering wherein they differ, than by taking 
my opinion in the matter upon trust. Where they 
agree, they are equally praiseworthy; but in cases 
where they differ, that law which is the most ex- 
cellent in its kind, after mature consideration, will 
eminently appear so to be : wherefore I shall pro- 
duce some such cases, that you may weigh them 
in an equal balance, and thereby know for certain, 
which law is the more just and rational in its de- 
cisions : and first, I shall propose some instances 
of cases, which appear to me the most considerable. 



63 



CHAP XX. 



Where any have a controversy depending be- 
fore a Judge, and they come to a trial upon the 
matter of fact, which those who are skilled in the 
laws of England, term the Issue of the Plea in 
question : the issue of such plea, by the rules of 
the Civil Law, is to be proved by the deposition 
of witnesses, and two witnesses are held sufficient : 
but, by the Laws of England, the truth of the 
matter cannot appear to the Judge, but upon the 
oath of twelve men of the neighbourhood, where 
the fact is supposed to be done. Now, the question 
is, which of those two ways of proceeding, so differ- 
ent, is to be esteemed the more rational and effectual 
for the discovery of the truth. That law which takes 
the best and most certain way of finding out the 
truth, is in that respect preferable to the other, 
which is of less force and efficacy : in the ex- 
amination hereof, I proceed thus*. 

3 In this Chapter Fortescue represents the institution of the 
Jury as being the prevailing form of trial in England : and 
many contemporary authorities, particularly the familiar letters 
of the Paston family, bear testimony to the same fact. It may 
be useful and interesting to ascertain the extent to which the 
trial by Jury was adopted in the time of Fortescue, which 
involves an enquiry into the history of its introduction, and of 
its gradual substitution for other modes of judicial investiga- 
tion. 

Dr. Pettingall, who reasons upon the ground, that legal and 
political institutions are the productions of civilized nations, 
and the result of wisdom and cultivated nature, has sought for 
the origin of this beneficial and liberal form of trial in the regula- 
tions 



64 

tions of Grecian and Roman judicature ; and he has endeavoured 
to establish, that what was at first a Roman law, and a mark of 
servitude in this country, by long usage came to be forgotten as 
such, and to be considered only as an ancient prescription. (Pe£- 
tingal on the Use of Juries among the Greeks and Romans.) Sir 
W. Jones in the Preface to his Translations of Isaeus, agrees with 
Dr. Pettingal, that the Athenian Juries differed from ours in very 
few particulars. A learned controversy has been sustained upon 
the question, whether the trial by Jury was in use among the 
Saxons. (Spelmans Gloss, Voc. Jurata. Hickes's Dissertatory 
Epistle on Saxon Literature. Preface to Wilkins's Leges Anglo- 
Saxonica: Brady's History of England. Hallam's Middle Ages, 
ch. 8. Reeves's History of the English Law, Part I. c. 1.) The 
discussions have principally turned upon the cicumstance, that in 
examining the laws and the treatises of the Saxons, together 
with the history of their judicial proceedings, the expressions 
which some writers suppose have reference to a Jury, are by 
others construed to be intended of compurgators, of the suitors 
of Court, or of certain assessors to the Judges. The first 
satisfactory relation of a trial by Jury in England, is in a 
cause in which Gundulph, Bishop of Rochester, was a party, 
and which was tried before the Bishop of Baieux, in the 
reign of the Conqueror. It was not until the reign of Henry 
the Second, that the trial by twelve men, " duodecemvirale 
judicium" generally superseded the trial by an indefinite number of 
suitors of Court, which was in very common use during the Saxon 
times. Reeves's History of the Larv, Henry II. Hallam's Middle Ages, 
ch. 8. Hickes's Diss. Epist.) The celebrated expression in Magna 
Charta " judicium parium" has received different interpretations : 
besides the more common one of its referring to a Jury. In the 
opinion of some writers, it means a trial by the pares curiae; and 
Coke observes that " judicium" is used instead of " veredictum," 
because it is intended to relate to proceedings before Lords in Par- 
liament, (2 Inst. 49.) — The trial by Duel had been a very ancient 
custom among the Normans, but it became gradually neglected 
after the Institution of Henry the Second, mentioned by Glan- 
ville, which abolished it in some cases, and afforded the option 
of avoiding it in others: to obviate the necessity of having 
recourse to this species of trial, in cases not within the scope 
of the provision of Henry II. the grand assize were frequently 
charged with the determination of collateral questions, which 
was signified by the expression " assisa vertitur in juratam :" 
and the Courts began to encumber the right of battle with 
new restrictions, as the eminent advantages of the trial by 
Jury became more fully apparent. We meet, however, with 
a judicial duel in the 19th of Henry VI. and other instances 
have occured since Fortescue wrote. In judging, however, of 
the sentiments of the age, from proceedings of this nature, the 

qualifications 



65 

qualifications of a champion are not to be lost sight of, he 
must have been " idoneus testis " and "liber homo." (Glanville, 
lib. ii. c 6 and 7- Several Tracts on Judicial Combats. Hearne's 
Curious Discourses. Selden de Duello. 2 Inst. 247. 3 Inst. 157, 
159, 221. Reeves's History of the Law, Henry II. Henry III. 
Edw. III. Henry VI. Among the Cot Ionian Manuscripts, is a 
mass of Materials respecting the Law of Duels, a great portion 
in the hand-writing of the Earl of Northampton, who was in the 

Commission for executing the Office of Earl Marshal.) The 

trial by ordeal was very prevalent during the Saxon period. 
The forms of it are particularly described by Selden in his 
"Janus Anglorum." Only one species of it occurs in the 
survey of Domesday. It had gone out of use before the time 
of Bracton, who makes no mention of it in his book. Its 
abolition is thought to be properly referred to the beginning 
of the reign of Henry III. There is a Writ of that King 
preserved in Rymer, (Vol. I. p. 228.) directing the Judges 
itinerant to suspend all trials by fire and water, till further 
provision could be made; which is generally supposed to 
have put an end to the custom : it had previously been 

prohibited by the Church The trial by compurgators occurs in 

the Saxon times, and is described by Glanville. In the opinion 
of Selden it was the " legem terrae," mentioned in Magna Charta. 
Traces of this form of trial still remain in some of our inferior 
Courts of Law of ancient origin : it is the process which exists of 
common right, in the County Court and Court Baron. (Hickes's 
Diss. Epist. Glanville, lib. i. c 9- 2 Inst. 45. 143.) And the 
privilege of it has been claimed in modern times in the Courts 
of Westminster. (1 N. R. 297- 2 B. and C.538.) The prevalence 
of the trial by compurgators, was greatly diminished when 
it became settled, that wager of law was not allowable in 
Exchequer process: there is a determination to this effect in 
the reign of Henry V. but the question long remained open 
to discussion. The actions upon the case given by the Statute 
of Westminster, were, in the time of Fortescue, gradually sup- 
planting the trial by wager of law, in becoming a substitute 
for those forms of action in which law-wager was permitted. 
These actions upon the case had been greatly expanded in the reign 
of Henry VI. Assumpsit had been brought so early as in that 
of Henry IV. Yet it was not until this last species of action 
had become a remedy applicable to all cases of debt, on sim- 
ple contract; till the action of trover was generally adopted 
instead of detinue, and Chancery proceedings were resorted 
to in preference to the action of account, that the trial by 
Jury can be said to have completely superseded that of wager 
of law. {Reeves's History of the Law. Henry IV. Henry V. 
Henry VI.) — There are some instances of a very singular and 
mixed species of trial ; a trial before the Lords in which there 



E 



66 

was a verdict of a Jury. Such were the cases of Sir T. 
Berkeley, in the reign of Edward the Third, and of Alice Piers 
in that of Richard II. {Report of the Lords' Committees re- 
specting the Peerage, p. 267- Reeves's History, Edw. III. Rich. II.) 
And an enumeration of some other modes of trial of inferior 
importance is to be found in the Report of the Case of the 
Abbot of Strata Marcel! a. (9 Rep. and see respecting the Number 
of Jurors in particular Cases, Hargr. Co. Litt. 155. a. n. 3. 
159 a- «• 2.) 



67 



CHAP. XXI 



By the course of Civil Law, the party, who, 
upon the trial, holds the affirmative side of the 
question, is to produce his Witnesses*, whom he 
is at liberty to name at his pleasure. On the 
other hand, a negative is incapable of being proved ; 
I mean directly, though indirectly it is otherwise. 
Now, he may well be thought a person of an in- 
considerable interest, and of less application, who, 
from the gross of mankind and all his acquaintance, 
cannot find out two, so devoid of conscience and 
all faith, who, through fear, inclination, affection, 
or for a bribe, will not be ready to gainsay the 
truth. So that the party, to make good his cause, 
is at his liberty to produce two of such a stamp ; 

a Hale, in his History of the Common Law, observes, that it is 
one of the excellencies of a Jury over the trial by witnesses, 
that although the Jurors ought to give great regard to the 
testimony of witnesses, yet they are not always bound by it. But 
some trials by our law have witnesses without a Jury : as of the 
life and death of the husband in Dower, and in " cui in vita," 
so in Englesherie anciently, and in " nativo habendo." The men- 
tion of the trial "per proves" in contradistinction to the trial 
" per pais " often occurs in Glanville, Bracton and the year books. 
A practice appears to have been introduced, in consequence of a 
clause in Magna Charta, (c. 28.) to examine the secta or suit of the 
plaintiff, and in several ancient records, the result of the examina- 
tion is given, and sometimes the default of the plaintiff in not 
producing his secta is mentioned: this proceeding appears to have 
become a mere formality in the time of Edw. III. (2 Inst. 44. 
80. 662. Dyer 185a. Selden ad Fortescuc. Bracton, lib. iv. Tract. 6. 
cap. 7. Fleta 137. Year Book, 17 Edw. III. fol. 48. b. Reeves's 
History of the Law, Henri/ III. Edw. III.) 

E 2 



68 

and if the other party had ever so much mind to 
object against them, or their evidence, it will 
not always happen that they are or can be known 
by the party, defendant in the cause, in order to 
call in question their life and conversation, that, 
as persons of a profligate character, they might 
be cross-examined; upon which account their 
evidence might be set aside : and, seeing their 
evidence is in the affirmative, it is not so capable 
of being- overthrown by circumstances, or any other 
indirect proofs. Who then can live securely with 
respect to his life, or estate, under such a law 
which is so much in favour of any one, who has 
a mind to do mischief? And, what two wicked 
wretches have usually so little caution, as not to 
form to themselves beforehand a perfect story of 
the fact, about which they know they are to be 
examined, with every minute circumstance attending 
it, as if they had been true and real? "For, the 
children of this world (as pur Saviour says) are 
in their generation wiser than the children of 
light." So, wicked Jezebel produced in judg- 
ment two witnesses, sons of Belial, to impeach 
Naboth, whereby he lost his life, and Ahab took 
possession of his vineyard, (l Kings xxi. 11, 17.) 
Again, by the testimony of two elders, who were 
judges, Susanna the virtuous wife of Joacim, 
had been put to death as an adulteress, had not 
God himself miraculously interposed to rescue her 
by a method so sudden and inconceivable, as carried 
the plain marks of inspired wisdom, and such as 
was far above the natural attainments of a youth, 
not yet arrived to maturity of years or judgment. 
For, though by varying in their evidence, he plainly 
convicted them to be false witnesses; yet, who but 
God alone, could have foreseen that they would 
thus have varied in their evidence? Since there 
was no law which obliged them to be so exact 
in every little circumstance, as to remember under 



69 

what kind of tree the fact alleged was committed. 
For, the witnesses of any criminal action are not 
supposed to take notice of every bush, or other 
circumstance of place, which seemed to import 
nothing, either as to the detecting or aggravating 
of the crime. But, when those wicked judges, 
in such their wilful deposition, varied concerning 
the species of the trees, their own words demon- 
strated that they had prevaricated and deviated from 
the truth, whereby they deservedly incurred the 
sentence of the law of Moses, according to which, 
they did unto them in such sort as they maliciously 
intended to do to their neighbour: and they put 
them to death. 

You have, most gracious Prince ! within your own 
memory, a remarkable instance, how much Justice 
may be perverted, in the case of Mr. John Fringe : 
who, after he had been in priests' orders for three 
years, was, by his own procurement, and the deposi- 
tion of two false witnesses, (who swore that he had 
been formerly contracted to a certain young girl) 
compelled to quit his orders and to marry her : after 
cohabiting with her fourteen years, and having had 
by her seven children, being at last convicted of high 
treason against your highness, in the very article of 
death, and in the hearing of a multitude of people, 
he declared that those witnesses had been suborned 
by him, and that what they deposed was utterly false 
and groundless. Many like instances you may have 
heard of, where justice has been perverted by means 
of false witnesses; even under judges of the greatest 
integrity, as is notorious to those, who converse with 
and know mankind. This sort of wickedness, alas I 
is but too frequently committed. 



70 



CHAP. XXII. 



For this reason, the Laws of France, in capital 
cases, do not think it enough to convict the accused 
by evidence, lest the innocent should thereby be 
condemned ; but they choose rather to put the accused 
themselves to the Rack, till they confess their 
guilt, than rely entirely on the deposition of wit- 
nesses, who, very often, from unreasonable prejudice 
and passion ; sometimes, at the instigation of wicked 
men, are suborned, and so become guilty of perjury. 
By which over cautious, and inhuman stretch of 
policy, the suspected, as well as the really guilty, 
are, in that kingdom, tortured so many ways, as 
is too tedious and bad for description. Some are 
extended on the rack, till their very sinews crack, 
and the veins gush out in streams of blood : others 
have weights hung to their feet, till their limbs are 
almost torn asunder, and the whole body dislocated : 
some have their mouths gagged to such a wideness, 
for a long time, whereat such quantities of water 
are poured in, that their bellies swell to a prodigious 
degree, and then being pierced with a faucet, spigot, 
or other instrument for the purpose, the water spouts 
out in great abundance, like a whale (if one may 
use the comparison) which, together with his prey, 
having taken in vast quantities of sea-water returns 
it up again in spouts, to a very great height. To 
describe the inhumanity of such exquisite tortures 
affects me with too real a concern, and the varieties 
of them are not to be recounted in a large volume. 
The Civil Laws themselves, where there is a want 
of evidence in criminal cases, have recourse to the 
like methods of torture for sifting out the truth. 



71 

Mo9t other kingdoms do the same : now, what man 
is there so stout or resolute, who has once gone 
through this horrid trial by torture, be he never so 
innocent, who will not rather confess himself guilty 
of all kinds of wickedness, than undergo the like 
tortures a second time ? Who would not rather die 
once, since death would put an end to all his fears, 
than to be killed so many times, and suffer so many 
hellish tortures, more terrible than death itself? Do 
you not remember, my Prince, a criminal, who, 
when upon the rack, impeached (of treason) a 
certain noble knight, a man of worth and loyalty, 
and declared that they were both concerned together 
in the same conspiracy : and, being taken down 
from the rack, he still persisted in the accusation, 
lest he should again be put to the question. Never- 
theless, being so much hurt and reduced by the 
severity of the punishment, that he was broughtalmost 
to the point of death, after he had the Viaticum and 
Sacraments administered to him, he then confessed, 
and took a very solemn oath upon it, by the body 
of Christ; and as he was now, as he imagined, 
just going to expire, he affirmed that the said 
worthy knight was innocent and clear of every 
thing he had laid to his charge: he added, that 
the tortures he was put to were so intolerable, that, 
rather than suffer them over again, he would accuse 
the same person of the same crimes*; nay, his own 
father: though, when he said this, he was in the 
bitterness of death, when all hopes of recovery were 
over. Neither did he at last escape that ignominious 
death, for he was hanged ; and, at the time and 
place of his execution, he acquitted the said knight 
of the crimes wherewith he had, not long before, 
charged him. Such confessions as these, alas ! a great 
many others of those poor wretches make, not led 

a The reader will be struck with the similarity between this 
relation and the language of Felton, when he was threatened 
with the rack. {WhUelock's Memorials, p. 11.) 



72 

by a regard to truth, but compelled to it, by the 
exquisiteness of their torments : now, what certainty 
can there arise from such extorted confessions; but, 
suppose a person falsely accused should have so 
much courage, so much sense of a life after this, 
as, amidst the terrors of this fiery trial (like the 
three young- Jews of old, Dan. iii.) neither to dis- 
honour God, nor lie to the damnation of his soul, 
so that the judge should hereupon pronounce him 
innocent: does he not with the same breath pro- 
nounce himself guilty of all that cruel punishment, 
which he inflicted upon such person undeservedly ? 
And how inhuman must that law be, which does 
its utmost to condemn the innocent, and convict 
the judge of cruelty? A practice so inhuman, 
deserves not indeed to be called a law, but the 
high road to hell. O judge! in what school of 
humanity did you learn this custom of being present 
and assisting, while the accused wretch is upon the 
rack. The execution of the sentence of the law 
upon criminals is a task fit only for little villains 
to perform, picked out from amongst the refuse of 
mankind, who are thereby rendered infamous for 
ever after, and unfit to act, or appear, in any 
Court of Justice. God Almighty does not execute 
his judgments on the damned by the ministration 
of angels, but of devils ; in purgatory, they are 
not good spirits, which torment and exercise souls, 
though predestinated to glory, but evil spirits. In this 
world, the wicked, by the permission of God, inflict 
the evil of punishment on sinners. For, when God 
said, (1 Kings xxii. 20.) " Who shall persuade Ahab 
that he may go up and fall at Ramoth Gilead," it was 
an evil spirit which came forth and said, "I will be 
a lying spirit in the mouth of all his prophets:" 
though God, for just reasons, had determined to 
suffer Ahab to be persuaded, and deceived by a lie, 
yet was it by no means becoming a good spirit to be 
employed on such an errand. Perhaps, the judge 



73 

will say, I have done nothing of myself in inflicting 
these tortures, which are not by way of punishment, 
but trial; but, how does it differ, whether he does 
it himself, while he is present on the bench, and, 
with reiterated commands, aggravates the nature 
of the crime, and encourages the officer in the 
execution of his office. It is only the master of 
the ship who brings her into port, though, in 
pursuance of his orders, others ply the steerage: 
for my own part, I see not how it is possible for the 
wound, which such a judge must give his own 
conscience, ever to close up, or be healed ; as long, 
at least, as his memory serves him to reflect upon 
the bitter tortures so unjustly and inhumanly in- 
flicted on the innocent b . 

b The passages in the text, will be read with interest, as 
exhibiting a very early protest on the behalf of injured humanity 
against the Law of Torture. It must, however, be observed, 
that the imperial Code, however deserving of reprobation, for 
countenancing the application of torture under any circum- 
stances, contained many restrictions on the use of it ; in parti- 
cular, to constitute a sufficient cause for condemnation to the 
rack, there must have been one witness against the prisoner, 
accompanied with pregnant presumption of guilt, or an extra- 
judicial confession proved by two witnesses. On the other 
hand, the annals of our own Country, have been deeply stained 
by the adoption of this inhuman practice. {See a Collection of 
Instances, in which Torture has been used in England, from the 
early mention of it, in the Proceedings against the Templars, 
tern. Edw. II. till the Declaration of the Judges, on the Occasion 
of Felton's Trial, Harrington's Observations on West. I. and 
27 Hen. VIII, Rose's Observations on Fox's History, and 
Heywood's Vindication of that Work, Grey's Hudibras, Part II. 
Canto ii. 1. 335, Ellis's Original Letters, Vol. II. p. 26l. Brodie 
on the British Empire, Vol. I. p. 236. Vol. II. p. 207, 209- Retro- 
spective Review, No. xviii. from the Manuscript of Sir S. Romilly, 
Observations on the late Continuance of Torture in Great Britain, 
Archceol. Antiq. Soc. Vol. X. For a Defence of the use of Torture, 
see "the Law of Laws" by Sir R. Wiseman, published a. d. 1664. 
For a description of the Rack, see Strult's Antiq. Vol. III. p. 46.) 
In perusing the horrible catalogue of examples of the use of 
torture in Great Britain, one is shocked to find, subscribed to 
warrants directing its infliction, the names of individuals, con- 
spicuous 



74 

spicuous for singular zeal either in the prosecution of philoso- 
phical truth, or the vindication of political liberty. This disgrace 
is attached to the characters of Lord Bacon, Sir E. Coke, and 
William the Third. (Vol. X. Archceol. Aniiq. Soc. Rose, p. 179- 
1 Scotts Somer's Tracts, 211.) The last of these eminent persons 
was indeed a foreigner, and did not infringe the law of the 
country in which he commanded torture to be applied, for 
until the time of the Union, it was permitted by the Law of 
Scotland. (Sir G. Mackenzie's Criminal Law, p. 543. Stair's 
Institutes, 699-) and Sir E. Coke has left to posterity, in his Insti- 
tutes, an indignant censure of the practice ; which he affirms to 
be repugnant to the letter and spirit of Magna Charta, and to 
be unsupported by any one legal authority or judicial record. 
It is observable, that in this part of his works, he pays a just 
tribute of praise to the opinion of Fortescue, which he adopts 
as the foundation of his own. It may not be too much to 
say, that the sentiments which are expressed in this Chapter, 
are not only honorable to the writer of them, but have had 
a practical and highly beneficial influence on the jurisprudence 
of the country. Montesquieu has descanted upon the example 
of England, as being a nation, among whom torture had been 
abolished, and no inconvenience had resulted from the want of 
it : Sir Thomas Smith, in his Republic, written in the reign of 
Edward the Sixth, takes pains to prove that torture is repugnant 
to the character of the people in this country. The adoption 
of it on the continent, is, in a great measure, owing to the sanction 
given to it in a code of laws composed by Charles V, called the 
Carolina. It was abolished by the Code Napoleon : but there ex- 
ists in France a species of mental torture, called Le Secret, which 
has been depictured by the writers of that nation, in the most 
frightful colours. (Observations sur Plusieurs points Importans 
de notre Legislation Criminelle par M. Dupin. He la Justice 
Criminelle en France par M. Beranger.) It will always be 
recollected, that many foreign writers, whose views have 
soared above the confined principles of the Governments 
under which they lived, have followed in the same wise 
and liberal track, in which they were preceded by Fortes- 
cue. Among these the name of Beccaria, connected with 
every thing that is humane in the administration of justice, 
stands conspicuous. The observations of Montesquieu on the 
subject are remarkable. " Tant d'habiles gens et de beaux genies 
ont ecrit contre cette pratique que se n'ose parler apres eux. 
J'allois dire qu'elle pourroit convenir dans les gouvernements 
despotiques ou tout ce qui inspire la crainte entre plus dans les 
ressorts du gouvernement, ; J'allois dire que les esclaves chez les 
Grecs et chez les Romains — mais j'entends la voix de la nature 
qui crie contre moi." Voltaire has expressed his sentiments upon 
this practice in a strain of eloquence dictated by the most en- 
lightened 



75 

lightened philosophy, and the tenderest feelings of the heart. 
" Ici un spectacle effrayant se presente tout-a-coup a mes yeux. 
le juge se lasse d'interroger par la parole, il veut interroger par 
les supplices : impatient dans ses recherches et peut-etre irrite de 
leur inutilite, on apporte des torches, des leviers, et tous ces in- 
strumens inventes pour la doleur. Un bourreau vient se meler 
aux fonctions de la Magistrature, et terminer par la violence un 
interrogataire commence par la liberte — Douce philosophie, toi 
qui ne cherche la verite qu'avec l'attention et la patience, t'at- 
tendais-tu que dans ton siecle on employat de tels instrumens 
pour la decouvrir". (IS Homme aux quaranie ecus). 



76 



CHAP XXIII 



Further, if a right accrues to a man to plead 
upon a trial, which arises from a contract, a.J'act 
done, a title of inheritance, or the like : in these 
cases, if either there were no witnesses at the first ; 
or, if they that were, are dead, the plaintiff will be 
obliged to drop his action, unless he can prove his 
right by such strong circumstantial proofs, as are 
not to be evaded, which seldom happens. Where 
lordships, and other possessions are in dispute ; and 
in all other actions which fall under the jurisdiction 
of the Civil Law, the actions of the plaintiffs are 
very often rendered incapable of being brought to 
an issue for want of evidence, so that scarce one 
half of them can attain the end proposed : under 
what denomination then is that law to be ranged, 
which, where parties are injured, is so defective in 
making satisfaction. I question whether such a 
law can be called just, if that be true which this 
very law informs us, (viz.) "That justice gives to 
every one their due;" which such a law as this 
most certainly does not a . 

a The preamble to the 27th Henry VIII. enumerates the 
inconveniences experienced in trials in the Admiralty Court, 
conducted according to the rules of the Civil Law, and may 
illustrate the observations of Fortescue, in the present and some 
preceding Chapters. " Where pirates upon the sea many times 
escaped unpunished, because the trial of their offences hath here- 
tofore been ordered before the Admiral after the course of the 
Civil Laws, the nature whereof is, that before any judgment of 
death can be given against the offenders, either they must plainly 

confess 



77 

confess their offence (which they will never do without torture 
or pains) or else their offences be so plainly and directly proved 
by witnesses indifferent, such as saw their offences committed, 
which cannot be gotten but by chance at few times, because 
such offenders commit their offences upon the sea, and at many 
times murder and kill such persons being in the ship or boat 
where they commit their offences, which should bear witness 
against them in that behalf, and also such as bear witness be 
commonly mariners and shipmen, which, for the most part, 
cannot be gotten, nor had always ready to testify such offences 
without long protraction of time, and great costs and charges, 



78 



CHAP XXIV. 



It being- thus explained how the Civil Laws 
direct the judge concerning the truth of a fact, 
which is brought on to trial, it remains to be ex- 
plained how the Laws of England boult out the 
truth of a fact, when it comes in issue. The 
manner of proceeding in both laws being laid, 
and compared together, their qualities will appear 
the more eminently, according to that saying of 
the philosopher, xe Opposites placed together give 
light to one another." But here, by way of in- 
troduction, and to borrow the rule or method 
used by orators, it may be necessary to premise 
some things, a right understanding whereof will 
help to let us into a more clear and distinct un- 
derstanding of what follows: I proceed thus : 
England is divided into Counties, as France is 
into Bailliwicks, or Provinces, so that there is no 
place in England, which is not within the body 
of some Counti/ : a counties are divided into 
Hundreds, which in some parts of England are 

a Among Hearne's Discourses, are several curious Tracts relative 
to the antiquity of Counties, and the principles upon which the 
division of them was made; and several solutions are there offered, 
to account for those strips of counties lying within the limits 
of one Shire, but which are parcel of another : the division of 
Counties is also treated of by Camden, in the Introduction to his 
Britannia, and many interesting facts respecting the Counties 
of England, are collected in the Dissertation upon Domesday 
Book, which has been published by commissioners for the public 
Records. {See further, respecting the " quillets" of Counties, Peck's 
Notes on Shakespeare's Plays, in his Memoirs of Milton, p. 230, 
and on the antiquated Counties, the distinction of Counties and 
Shires, and the Earldom of Berkshire, Fuller's Worthies, c. 19-) 



79 

called Wapentakes* , and Hundreds again, are 
subdivided into Vills % under which appellation 



b In the laws ascribed to Edward the Confessor, is the follow- 
ing passage : " Everwickshire, Nicholshyre, Nottinghamshire, 
Leicestershire, Northamptonshire usque ad Watlingstrete et octo 
millia ultra sub lege Anglorum sunt, et quod Angli vocant 
hundredum supradicti comitatus vocant wapentachium." It 
appears from an entry in Domesday Book, under the head of 
Nottinghamshire, that the Wapentake paid the third penny in 
the same manner as the Hundred. The original meaning sig- 
nified by the division of hundreds has been disputed by An- 
tiquarians of great celebrity : a hundred families, a hundred pro- 
prietors, a hundred hydes, a hundred villages, have all been assigned 
as the foundation of the name. Tacitus speaks of an institution 
among the ancient Germans, which is supposed by some writers 
to have been introduced by the Saxons into this Country, " Cen- 
teni ex singulis pagis sunt, idque ipsum inter suos vocantur." 
And another passage from the same author has been thought to 
explain the meaning of the term Wapentake, " Considunt armati : 
si displicuit sententia, fremitu aspernantur : sin placuit, frameas 
concutiunt." But the signification of this word, as well as that 
of " Hundred " has given rise to a variety of opinions. Hallam 
conjectures that the Wapentakes must have been planned upon 
a different system from the Hundreds, for he thinks that the 
circumstance of the greater density of population existing 
in the south of England in early times, is not sufficient to ac- 
count for the inequality observable in the number of Hundreds 
for the same extent of Country. The Wapentakes appear to 
have undergone a great alteration in their names since the period 
when Domesday Book was compiled. (Diss, on Domesday Book, 
Report of the Commissioners for Public Records. Hallam's 
Middle Ages, Vol. II. p. 139- and see ibid, respecting the Juris- 
diction of the Tithing-man. Spdman's Gloss. Voc. Wapentachium 
and Hundredus. 2 Inst. 99.) 

c Fortescue's description of Vills, is cited in the first Institute : 
but Coke's definition is more particular than that in the text : he 
says that a Vill is " ex pluribus mansionibus vicinata, " and it must 
have had a church and celebration of divine service, sacraments and 
burials. Blackstone observes, that the latter distinction is more 
of an ecclesiastical nature, and he adds, that a Vill formerly con- 
tained ten freeholders, and is synonymous with a tithing. It 
has been considered that the word " pluribus " in Coke's de- 
finition, points to a greater number than two : but the modern 
notion of a Vill in the Courts of Law, seems to depend upon 
the circumstance of the place having had a constable. In the 
Exchequer is preserved a register of the names of all the villages 

and 



80 

Cities and Boroughs* are included. The boun- 
daries of those Vills are not ascertained by walls, 
building's or streets; but, by a compass of fields, 
large districts of land, some hamlets 6 , and divers 
other limits; as rivers, water-courses, wood-lands, 
and wastes of common, which there is now no 
occasion to describe by their particular names ; 
because there is scarce any place in England, but 
what is within the limits of some Vill, though there 
be certain privileged places within Vills, which 
are not reputed as parts or parcels of such Vills ; 
farther, there is in every county a certain officer, 
called the King's Sheriff, who, amongst other duties 
of his office, executes within his county all man- 
dates and judgments of the King's Courts of Justice : 
he is an annual officer ; and, it is not lawful for 
him, after the expiration of his year, to continue 

and towns of England, collected in the reign of Edward II. 
and a similar catalogue entitled Villare Anglicum, is published 
among Spelman's Works. (Diss, on D. B. Co. Litt. 115 b. 
Spelman's Gloss, v. Villa. Tract upon Towns by Sir R. Cotton 
in Hearnes Discourses. R. v. Shoivler, 3 Burr. Rep. R. v. Hor- 
ion, 1 T. R. and for the early Progress of Towns in England, 
Hallam's Middle Ages, Vol. II. p. 224. et seq. Brodie's British 
Empire, Introduction.) 

d A variety of curious particulars respecting the Cities and 
Boroughs existing at the time of the conquest, are contained in 
Domesday Book, and are collected in the dissertation upon that 
work, recently published by the commissioners of public records. 
The account which is given of Cities and Boroughs by Coke in 
his Institutes, and in which he is generally followed by Black- 
stone, appears liable to many well founded objections. (Hargr. 
Co. Litt. 108 b. n. 3 and 4. 109 o. n. 2 and 3. Brady on Boroughs. 
Madox's Firma Burgi. Whitelock on the Parliamentary Writ. 
Essay on the Antiquity of Cities in Hearne's Cur. Disc.) 

e Spelman in his Glossary ( Voc. Hamet) after mentioning the 
signification of "ham" to be "villa" and that of" let" "membrum, " 
cites the following passage from a Statute of Edw. I. which ex- 
plains the division of the Country into Hamlets. "Que ils 
ordeinent et facent venir devant eux de chescune ville entier 
8 homes, et de demie ville 6 homes, et de hamlette 4 homes 
des pluis sages et pluis loyalz." Spelman defines a Hamlet 
to be a place " Ubi quinque capitales plegii non deprehensi 
sunt." 



81 

to act in his said office, neither shall he be taken 
in again to execute the said office within two years 
thence next ensuing". The manner of his election 
is thus: Every year, on the morrow of All-Souls, 
there meet in the King's Court of Exchequer all 
the King's Counsellors, as well Lords spiritual 
and temporal, as all other the King's Justices, all 
the Barons of the Exchequer, the Master of the 
Rolls, and certain other officers, when all of 
them, by common consent, nominate three of every 
county Knights or Esquires, persons of distinction, 
and such as they esteem fittest qualified to bear 
the office of Sheriff 1 of that county, for the year 
ensuing: the king tmly makes choice of one out 
of the three so nominated and returned. Who, in 
virtue of the King's Letters Patent, is constituted 
High Sheriff of that county, for which he is so 
chosen, for the year then next ensuing. But, 
before he can take upon him to act in consequence 
of the said Letters Patent, he shall swear upon 
the holy Evangelists, amongst other clauses, well, 
faithfully and indifferently to execute and do his 
duty for that year, and that he will not receive 
any thing, under pretext or color of his said 
office, from any one, other than and except from 
the King's Majesty f . This being premised, let us 
now proceed to those other matters which fall in 
with our present inquiry 8 . 



f This is provided for by the Statute of West. 2. c. 26. which 
Coke observes was made in affirmance of a fundamental maxim 
of the Common Law, (2 Inst. 210. See Concerning the Sheriff's 
Ox. West. 2. c 25.) 

8 Selden, in his " Titles of Honour," assigns a different mean- 
ing to the terms Comes and Vicecomes, from those which 
usually occur in the glossarists, and which are authorized by 
the " Dialogue of the Exchequer." Selden derives Comes, not 
from the Earl participating in the profits of the County (a 
derivation which he acknowleges to be recognized in many 
ancient patents conferring the title,) but from his being tlie 

companion 

F 



82 

companion and Counsellor of the Prince; which agrees with 
Bracton's view of the subject. So he conceives the term 
Vicecomes did not denote any subordination to the Comes, 
but meant that the King had appointed a person who might 
"supplere vicem Comitis" in those Counties where he had 
no Comes ; (Selden's Titles of Honor, Part II. Madox's Notes 
on the Dialogue of the Exchequer, p. 31.) The nature of 
the Sheriff's duties, in the early period of our history, is 
minutely detailed in Madox's Treatise upon the Exchequer. 
A Sheriff in former times had often more Counties than one 
under his charge, in the same manner as the Sheriff of Cam- 
bridge is, at the present day, also Sheriff of Huntingdon. Upon 
this circumstance was founded the argument in the case of 
Wilkes's outlawry, that an averment of the proceedings in 
outlawry, having taken place at a Court holden by the 
Sheriff of Middlesex within the County of Middlesex, was 
compatible with the possible fact, that the Sheriff of Middlesex 
might also be the Sheriff of some other County, and might 
have been holding the County Court, for that County, within 
Middlesex, which the law allowed, and that consequently the 
proceedings might not have taken place at a County Court 
for Middlesex : but as two persons never were Sheriff of any 
other County than Middlesex, the argument was not main- 
tainable. The question does not appear free from doubt, 
whether before the Statutes, which relate to the office of Sheriff, 
it was in the appointment of the freeholders of the County or 
of the Crown. (2 Inst. 558. Madox's Notes on the Dialogue 
of the Exchequer, p. 33. Spelman's Gloss. Voc. Vicecomes.') 
Anciently the situation of the Sheriff must have been one of 
the highest responsibility; the collection of the royal revenue 
for the County usually appertained to that officer. {Madox's 
Exchequer, p. 223. Barrington's Observations on Art. Super 
Chartus, and Stat, de Marlb.) his interference was required 
on the occasion of distresses of various kinds, which appear 
to have been very numerous at an early period. (Barrington's 
Observations on Magna Charta, c. 14. and Stat, de Scacc. 51 
Hen. III.) and at a time when the forcible abduction or de- 
tention of wards, was of frequent occurrence, and individuals 
had often recourse to violent methods for the assertion of 
their real or supposed rights, the authority and summary 
powers of the Sheriff were often called into use. (Paston 
Letters, Vol. III. Lett. 22, and many others in the same Collection.) 
But, the most important occasions upon which the Sheriff is 
invested with an authority, materially affecting the interests of 
the community, is, in the dischage of his duties as the returning 
officer at elections for Members of Parliament, and in the ap- 
pointment of proper persons to perform the office of Jurymen. 
The partiality of Sheriffs in executing Writs of Parliament, 

became 



S3 

became the subject of complaint at a very early period. (Stat. 
5 Rich. II. Fart II. c. 4. 7 Henry IV. c. 15. 1 Henry V. c. I. 
8 Henry VI. c. 7> 23 Henry VI. c. 14. Henry's History, 
Book V. c. 3. Paston Letters, Vol. III. Lett. 109, from the 
Under Sheriff, saying, " I purpose, as I will answer God, to return 
the due Election, nevertheless I have a Master;" also Vol. III. 
Letter 36. Vol. IV. Letter 6 and 8.) And although a King 
of this nation once adopted the iniquitous measure of appoint- 
ing to the office of Sheriff, the great champions of the liberties 
of the Country, in order to prevent them from expressing in 
Parliament those sentiments and opinions to which no satisfac- 
tory answer could be given in a Constitutional way ; yet on 
other occasions, the Crown has frequently availed itself of the 
agency of a presiding officer of its own nomination, in order 
to exercise an undue influence over the election of Members 
of Parliament. (See the Articles against Rich. II. Howell's St. Tr, 
Holinshed, Hayward. Strype's, Eccl. Mem. Vol. II. p. 394. Vol. III. 
p. 155. Strype's Annals, Vol. I. p. 32. Reresby's Memoirs, p. 80. 
For the circumstances attending Sir E. Coke's Appointment, and the 
Law relative to the Case, 1 Rush. p. 197- Strafford's Lett, and 
Disp. p. 29. Douglas on Elections, Southampton Case, Abing- 
don Case.) The safeguard which in the present day is opposed 
to the partiality of the Sheriff, may be considered as one of the 
fruits of the Revolution. (Stat. 10 and 11 William III. Case of 
Ashby and White, Hargr. St. Tr. and see the Debate on the West- 
minster Scrutiny. Pari. Deb. a. d. 1784.) — The corruption of 
Sheriffs in composing the panels of Jurymen, was a serious 
impediment to the administration of Justice in early times. 
We read of its being common to charge, in an attorney's bill, 
pro amicitia Vicecomitis. It appears from the Paston Letters, 
that it was not unusual to procure a King's letter to obtain 
the Sheriff's favor on an approaching trial, the price of which 
was generally a Noble. The misconduct of Sheriffs in this 
branch of their duty, is recited as one of the reasons for establish- 
ing or remodelling the Star Chamber, in the Act of Henry VII. 
which relates to that tribunal. (" Camera Stellata by Mr. Tate 
in Hearne's Disc. Hume's Append, to the Reign of Henry VII. 
Paston Letters, Vol. III. Letter 76, and several others in the same 
Collection. St. 18 Hen. VI. c. 14. for recovering Bribes from the 
Sheriff, given him to return Juries. Barrington's Observations on 
11 Henry VII.) But it was in the reign of Charles II. that 
the michief which may arise from the authority of the Sheriff, 
in matters of judicature, when it is perverted for the purpose 
of abetting a wicked exercise of the prerogative, was most 
strikingly evinced. (Harris's Life of Charles II. Burnet, 
Vol. I. p. 536.) A desire of securing the obedience of the 
Sheriffs of London, in order to put a stop to the "reign of 
Ignoramus " is avowed by North in his Examen, to have been 

the 

F 2 



84 

the motive for procuring the forfeiture of the City's Charter: 
wnd the same Author, in his attempt, in another work, to pa- 
negyrize his relation, Lord Keeper Guilford, for his conduct 
on the occasion of the election of the London Sheriffs, has 
handed down his name to all posterity, as a paragon of servility, 
dishonesty and injustice. When it is considered by what persons 
the Juries of. the City of London were returned in the latter 
years of Charles II, the authority of their verdicts is annihilated: 
and we must acknowledge the truth of the comparison made by 
a great Statesman, between the conduct of Charles, and that of 
Tiberius, who seldom put his victims to death without a decree 
of the Senate. 



85 



CHAP. XXV. 



Whensoever the parties, contending in the 
King's Courts, are come to the issue of the Plea, 
upon the matter of fact, the justices forthwith, by 
virtue of the King's Writ, write to the Sheriff of 
the County, where the fact is supposed to be, that 
he would cause to come before them, at a certain 
day, by them appointed, twelve good and lawful 
men of the neighbourhood, where the fact is sup- 
posed, who stand in no relation to either of the 
parties who are at issue, in order to enquire 
and know upon their oaths, if the fact be so as 
one of the parties alleges, or whether it be as 
the other contends it, with him. At which day 
the Sheriff shall make return of the said Writ 
before the same Justices, with a panel of the names 
of them whom he had summoned for that purpose. 
In case they appear, either party may challenge 
the array, and allege, that the Sheriff' hath acted 
therein partially, and in favour of the other party, 
(viz.) by summoning such as are too much parties 
in the cause and not indifferent; which exception, 
if it be found to be true upon the oath of two 
men of the same panel, pitched on by the Justices, 
the panel shall immediately be quashed, and then 
the Justices shall write to the Coroners of the 
same County, to make a new panel; in case that 
likewise should be excepted against, and be made 
appear to be corrupt and vicious, this panel shall 
also be quashed. Then the Justices shall choose 
two of the clerks in Court, or others of the same 



86 

County, who, sitting in the court, shall upon 
their oaths, make an indifferent panel, Avhich shall 
be excepted to by neither of the parties ; but, 
being so impanelled, and appearing in Court, 
either party may except against any particular 
person ; as he may at all times, and in all cases, 
by alledging that the person so impanelled is of 
kin, either by blood, or affinity to the other party ; 
or in some such particular interest, as he cannot 
be deemed an indifferent person to pass between 
the parties : of which sort of exceptions there is 
so much variety, as is impossible to shew in a small 
compass : if any one of the exceptions be made 
appear to the Court to be true and reasonable, 
then he against whom the exception is taken, shall 
not be sworn, but his name shall be struck out 
of the panel: in like manner shall be done with 
all the rest of the panel, until twelve be sworn : 
so indifferent, as to the event of the cause, that 
neither of the parties can have reasonable matter 
of challenge against them : out of these twelve, four, 
at the least, shall be Hundredors, dwelling in the 
Hundred, where the Vitt is situate, in which the 
fact disputed is supposed to be : and every one of 
the Jury shall have lands, or revenues, for the term of 
his life, of the yearly value at least of forty shillings. 
This method is observed in all actions and causes, 
criminal, real or personal ; except where, in personal 
actions the damages, or thing in demand, shall 
not exceed forty marks English money : because, 
in such like actions of small value, it is not neces- 
sary, nor required, that the Jurors should be able 
to expend so much ; but they are required to have 
lands, or revenues, to a competent value, at the 
discretion of the Justices ; otherwise they shall 
not be accepted; lest, by reason of their meanness 
and poverty, they may be liable to be easily bribed, 
or suborned : and in case, after all exceptions taken, 
so many be struck out of the panel, that there does 



87 

not remain a sufficient number to make up the 
Jury, then it shall be given in charge to the Sheriff, 
by virtue of the King's Writ, that he add more 
Jurors; which is usually and often done, that the 
enquiry of the truth upon the issue in question 
may not remain undecided, for want of Jurors. 
This is the form how Jurors, who enquire into the 
truth, ought to be returned, chosen and sworn in 
the King's Courts of Justice: it remains to enquire 
and explain how they ought to be charged and 
informed as to their declaration of the truth of the 
issue before them 3 . 

* In this Chapter, Fortescue directs the attention of the 
Prince, to some of the leading features of the trial by Jury : 
it will be noticed, that several of the principles, upon which 
that institution was originally founded, have undergone essential 
alterations. The qualification of neighbourhood, has been 
materially affected by Statute: and the private knowledge of 
Jurors, is not at present deemed a proper cause for their 
decision; whereas so late as the time of Charles II, it was 
considered by the Courts, that the greater and better part of 
the evidence, which should sway the minds of the Jury, 
might be unknown to the Judge : an infraction of the right 
of being tried by Peers of their vicinage, was alleged by the 
American States, as one of the grounds of their quarrel with 
Great Britain. {Memoirs of Franklin 1. p. 462. Per C. J. Vaughan, 
Case of Bushell's Habeas Corpus; and see C J. Pemberton's 
Charge to Lord Shaftesbury's Grand Jury. Concerning the 
Period when the Principle came to be changed, 3 Bl. Comm. 374. 
Styles 233. 1 Sid 133.) The qualification of freehold has been 
greatly modified by the Legislature: it was, however, insisted 
upon as indispensable in trials for High Treason, by a clause 
in the Bill of Rights, a circumstance which was owing to the 
celebrated discussion upon the subject in the case of Lord 
Russel. In High Treason, likewise, the subject is furnished 
by Statutes passed since the Revolution, with an advantage 
in the challenging of the Jurors, which he did not possess 
at Common Law, by supplying him with the names, pro- 
fessions and abodes of the Jurors, at a specified period before 
the trial. Foster expresses a doubt, whether, by the Law, as 
it is now settled, a prisoner accused of treason, is not invested 
with privileges too great for the purposes of equal justice. 
But, as far as the power of challenging is concerned, the prisoner 
will be thought to be entitled to every facility, when it is 

considered 



88 

considered, that, by the rules which the Courts have established, 
he cannot defer making his challenge in any instance, for the 
purpose of ascertaining whether the Counsel for the Crown 
intend to offer theirs ; that no cause can be required to be 
shewn on the part of the prosecution, until all the panel has 
been gone through; and that the great size of the panels, 
which has been allowed in trials for High Treason, combined 
with these two circumstances, operates to invest the Crown 
with the power of arbitrarily rejecting Jurors. {See the Cases 
of OCoigly, and Home Took, for Treason. Howell's St. Tr. 
and References, ibid.) A very important alteration has taken 
place in the ancient law respecting Juries, by the practice of 
striking Special Juries in cases of misdemeanor. The Statute of 
3 George II, recognizes this usage as being then long esta- 
blished. The reader will find the objections, which have been 
made to the use of Special Juries in State prosecutions, urged with 
great ability by the defendant, in the case of the King v. Home 
11th St. Tr. and in a letter addressed by Lord Lyttleton to 
a Member of Parliament, which is published in his works. 
Previous to the Statute of William, the trial of a Peer in 
the High Steward's Court, afforded opportunities for the most 
flagrant injustice; since the selection of the Lords who were 
to try the prisoner, was virtually the act of the Crown, and 
there existed no right of challenge. A single historical fact, 
will illustrate the danger to which Peers were liable to be 
exposed by such an unfair mode of procedure. At the trial of 
the Protector Somerset, Northumberland, Northampton, and 
Pembroke, sat among his Judges. 



89 



CHAP. XXVI. 



Twelve good and true men being sworn, as 
in the manner above related, legally qualified, 
that is, having over and besides their moveables, 
possessions in land sufficient (as was said) where- 
with to maintain their rank and station ; neither 
suspected by, nor at variance with either of the 
parties; all of the neighbourhood; there shall 
be read to them in English, by the Court, the 
Record and nature of the plea, at length, which 
is depending between the parties; and the Issue 
thereupon shall be plainly laid before them, con- 
cerning the truth of which, those who are so 
sworn, are to certify the Court : which done, each 
of the parties, by themselves or their Counsel, 
in presence of the Court, shall declare and lay 
open to the Jury all and singular the matters and 
evidences, whereby they think they may be able 
to inform the Court concerning the truth of the 
point in question; after which each of the parties 
has a liberty to produce before the Court all such 
witnesses as they please, or can get to appear 
on their behalf; who being charged upon their 
oaths, shall give in evidence all that they know 
touching the truth of the fact, concerning which 
the parties are at issue: and, if necessity so require, 
the witnesses may be heard and examined apart a , 
till they shall have deposed all that they have to 

See the Cases of Cook and of Vaughan, tem. Will. III. 
Hargr. St. Tr. 



90 

give in evidence, so that what the one has declared 
shall not inform or induce another witness of the 
same side, to give his evidence in the same words, 
or to the very same effect. The whole of the 
evidence being gone through, the Jurors shall 
confer together, at their pleasure, as they shall think 
most convenient, upon the truth of the issue before 
them; with as much deliberation and leisure as 
they can well desire, being all the while in the 
keeping of an officer of the Court, in a place assigned 
them for that purpose, lest any one should attempt 
by indirect methods to influence them as to their 
opinion, which they are to give in to the Court. 
Lastly, they are to return into Court and certify 
the Justices upon the truth of the issue so joined, 
in the presence of the parties (if they please to be 
present) particularly the person who is plaintiff in 
the cause ; what the Jurors shall so certify in the 
Laics of England, is called the Verdict. In pur- 
suance of which verdict, the Justices shall render 
and form their judgment. Notwithstanding, if the 
party, against whom such verdict is obtained, com- 
plain that he is thereby aggrieved, he may sue out 
a writ of Attaint, both against the Jury, and also 
against the party who obtained it ; in virtue of 
which, if it be found upon the oath of twenty-four 
men (returned in manner before observed, chosen 
and sworn in due form of law, who ought to have 
much better estates than those who were first returned 
and sworn) that those, who were of the original 
panel and sworn to try the fact, have given a verdict, 
contrary to evidence, and their oath; every one of 
the first Jury shall be committed to the publick gaol, 
their goods shall be confiscated, their possessions seized 
into the King's hands, their habitations and houses 
shall be pulled down, their woodlands shall be felled, 
their meadows shall be plowed up, and they them- 
selves shall ever thenceforward be esteemed, in the 
eye of the Law, infamous, and in no case whatso- 



91 

ever, are they to be admitted to give evidence in 
any Court of Record: the party, who suffered in 
the former trial, shall be restored to every thing' 
they gave against him, through occasion of such 
their false verdict: and, who then (though he should 
have no regard to conscience or honesty) being so 
charged upon his oath, would not declare the truth 
from the bare apprehensions and shame of so heavy 
a punishment, and the very great infamy which 
attends a contrary behaviour? and, if perhaps, one 
or more amongst them should be so unthinking or 
daring, as to prostitute their character, yet the rest 
of the Jurors, probably, will set a better value on 
their reputations than suffer either their good name 
or possessions to be destroyed and seized in such 
a manner : now, is not this method of coming at the 
truth better and more effectual, than that way of 
proceeding, which the Civil Laws prescribe? No 
one's cause or right is, in this case, lost, either by 
death or failure of witnesses. The Jurors returned 
are well known, they are not procured for hire; they 
are not of inferior condition ; neither strangers, nor 
people of uncertain characters, whose circumstances 
or prejudices may be unknown. The witnesses or 
Jurors are of the neighbourhood, able to live of 
themselves, of good reputation and unexceptionable 
characters, not brought before the Court by either 
of the parties, but chosen and returned by a proper 
officer, a worthy, disinterested and indifferent per- 
son, and obliged under a penalty to appear upon 
the trial. They are well acquainted with all the 
facts, which the evidences depose, and with their 
several characters. What need of more words? there 
is nothing omitted which can discover the truth of 
the case at issue, nothing which can in any respect 
be concealed from, or unknown to a Jury who arc 
so appointed and returned, I say, as far as it is 
possible for the wit of man to devise. 



92 



CHAP, xxvir. 



It becomes now absolutely necessary to inquire 
thoroughly how the Laws of England come at the 
truth in cases criminal; whereby the form of pro- 
ceedings in both laws being made appear, we may 
the better judge, which law does most effectually 
discover the truth. If any suspected person who 
stands accused for felony or treason committed in 
England, denies the crime of which he stands 
accused, before his Judges: the Sheriff of the 
County where the fact is committed, shall cause 
to come before the same Judges twenty-four good 
and lawful men of the neighbourhood to the Vill 
where the fact was done, who are in no wise allied 
to the person accused, who have lands and revenues 
to the value of an hundred shillings; and they are 
to certify to the Judges upon the truth of the fact, 
wherewith the party is charged. Upon their ap- 
pearance in Court, as they come to the book to 
be sworn, before they be sworn, the person accused 
may challenge them, in the same manner as is above 
described, and as is usually done in real actions. 
FurtKer, in favour of life, he may challenge Jive 
and thirty; such as he most feareth and suspecteth, 
who, upon such challenge shall be struck out of 
the Panel, or such marks set over against their 
names, that (to use the term in law) they shall not 
pass upon him in trial ; and this peremptorily, 
without assigning any cause for such challenge; 
and no exceptions are to be taken against such 



93 

his challenge: who then in England can be put 
to death unjustly for any crime? since he is allowed 
so many pleas and privileges in favour of life : none 
but his neighbours, men of honest and good repute, 
against whom he can have no probable cause of ex- 
ception, can find the person accused, guilty. Indeed, 
one would much rather that twenty guilty persons 
should escape the punishment of death, than that 
one innocent person should be condemned, and 
suffer capitally. Neither can there be any room for 
suspicion, that in such a course and method of pro- 
ceeding, a guilty person can escape the punishment 
due to his crimes; such a man's life and conversation 
would be restraint and terror sufficient to those who 
should have any inclination to acquit him : in a pro- 
secution, carried on in this manner, there is nothing 
cruel, nothing inhuman; an innocent person cannot 
suffer in life or limb: he has no reason to dread the 
prejudices or calumny of his enemies, he will not, 
cannot, be put to the rack, to gratify their will and 
pleasure. In such a Constitution, under such laws, 
every man may live safely and securely. Judge then, 
good Sir ! which law is rather to be chosen, putting 
yourself in the private capacity of a subject". 

a In the two preceding Chapters, Fortescue considers the 
evidence in a trial, the verdict of the Jury, and their respon- 
sibility in the discharge of the duties confided to them. It 
will be oberved that the Jurors in the course of this treatise 
are frequently called testes; it would seem that they were 
originally the only witnesses in every cause, agreeably to 
the maxim, "vicini vicinorum praesumuntur scire:" and that 
when any of the Jury protested ignorance of the matter in 
dispute, they were removed, and their places supplied by 
others. {Reeves's History of the Law, Henry III, Edw. I.) 
The essential alteration, which has since taken place in 
the character of the Jury, does not appear to have been 
thoroughly effected till the times of Edward VI, and Mary. 
Many changes of a very important description, have been 
made in the rules of the Courts, respecting the conduct of 
a trial. As regards the evidence on the part of the prosecution, 

the 



94 

the prisoner was for a long time debarred the privilege of 
cross-examining the witnesses brought against him : a privilege 
which Lord Camden, in the case of the Dutchess of Kingston, 
speaks of with enthusiastic eloquence ; yet written examinations 
were on many occasions produced in evidence for the Crown, 
not signed by the witnesses, and frequently made by persons 
who had themselves been capitally convicted. (Amongst others, 
the Cases of Sir N. Throgmorton, Udall, the Duke of Norfolk, 
Sir Walter Raleigh ; and see Foster's Discourse on Treason.) A 
practice of interrogating the prisoner upon his trial, for the 
purpose of establishing the charge against him, or taking off 
the effect of his defence, appears to have formerly prevailed in 
the Courts of Justice of this Country. (See the Cases of Sir 
N. Throgmorton, Whitebread, Langhorne, Gaunt ; and since the 
Revolution, the Cases of Ashton and Sir W. Parkyns.) By the 
Statute of Edward the Sixth, two witnesses were required in 
prosecutions for High Treason, and they were to be produced 
in open Court. The singular vicissitudes attending this Statute, 
are detailed by Mr. Justice Foster in his Discourse upon High 
Treason, and by Mr. Reeves in his History of the Law. At 
first slighted, before any attempt was made to invalidate it; 
afterwards, from an early period of the reign of Mary till the 
Commonwealth, treated as repealed : acknowledged to be in 
force under that Government; regarded as unquestionable 
Law after the Restoration; and finally cleared from equivocal 
meaning and sophistical interpretations by the Treason Act of 
William the Third. The nature and functions of the Grand 
Jury in ancient times, may be collected from what Glanville 
has written concerning the "fama publica;" and from the 
Chapter in Bracton respecting the proceedings " per famam 
patriae. " (Glanville, lib. xiv. c. 1. Bracton, lib. iii. c. 22. and 
see Kelham's Britton, p. 18. n. 15. a record of an Indictment on 
Suspicion.) In the reign of Charles II, it became an object 
of deep national concern, to ascertain the evidence which a 
Grand Jury ought to require in support of indictments pre- 
ferred before them in the absence of the party accused. 
C. J. Pemberton instructed a Grand Jury, that it was not 
competent to them to examine the credit of the King's wit- 
nesses, and that they ought to be satisfied with any ground 
the Crown might shew for calling upon the prisoner to answer 
the imputed charge. This Grand Jury refused to act upon 
the advice of the Judge, which they conceived to be at variance 
with the principles upon which their institution was founded, 
and accordingly ignored a bill that had been preferred against 
the celebrated Lord Shaftesbury. Lord Somers has defended 
the propriety of their conduct in a celebrated Tract upon the 
duty of Grand Juries, in which he repeatedly appeals to the 
authority of Fortescue, and maintains "that the Constitution 

intrusts 



95 

intrusts such inquisitions in the hands of persons of under- 
standing and integrity, indifferent and impartial, that might 
suffer no man to be falsely accused or defamed, nor the lives 
of any to be put in jeopardy by the malicious conspiracies of 
great or small, or the perjuries of any profligate wretches." 
(Lord Somers on Grand Juries. Security of Englishmen's Lives, 
Tracts, tern. Car. II. Dryden's Medal, with the Notes of Sir 
W. Scott. Sir J. Hawles's Remarks on Lord Shaftesbury's Grand 
Jury. North's Examen, and the Tracts of the time respecting 

"Ignoramus.") With respect to the evidence adduced on 

the part of the prisoner in his defence ; Mary was the first 
English Sovereign who recommended to her Judges to allow, 
as a favor, of witnesses being brought against the Crown ; but 
they did not always adopt this course of proceeding. (4 Bl. 
Comm. p. 359. Sir N. Throgmorton's Case, Hargr. St. Tr.) 
It was not until the Statute of William, which is applicable to 
cases of treason only, that the attendance of witnesses for the 
prisoner was compulsory ; nor until the Statute of Anne, that 
they were examined upon oath in treason and felony. (3 Inst. 79 ; 
and see Observations upon the Ancient Rule, and its effect in the 
Case of Fitzharris, Sir J. Hawles's Remarks on Colledge's Case.) The 
Act of William first enabled Counsel to conduct the prisoner's full 
defence in trials for treason, in which he was not entitled to 
any assistance even for the examination of witnesses : the like 
privilege was not conferred in cases of impeachment until 
the 20th George II. The difficulties with which a prisoner 
had to contend in State prosecutions before the Revolution, are 
thus detailed by Sir J. Hawles. " A man is by a messenger, 
without any indictment precedent, which by the Common Law 
ought to precede, or any accuser or accusation that he knows 
of, clapt up in close prison, and neither friend or relation must 
come to him ; he must have neither pen, ink or paper, or know 
of what or by whom he is accused ; he must divine all, and 
provide himself a counter-evidence without knowing what the 
evidence is against him. If any person advise or solicit for 
him, unless assigned by the Court before which he is tried, 
they are punishable : he is tried as soon as he comes into the 
Court, and therefore of a Solicitor there is no occasion or use : 
if the prisoner desires Counsel upon a point of law, as was 
done in my Lord Russel's trial, the Counsel named must be 
ready to argue presently, and the Court deliver their judg- 
ment presently without any consideration. The prisoner, indeed, 
hath liberty to except to twenty-five of the Jury peremptorily, 
and as many more as he hath cause to except to, but he must 
not know beforehand who the Jury are ; but the King's Counsel 
must have a copy of them : he must hear all the witnesses pro- 
duced to prove him guilty together, without answering each 
as he comes, for that is breaking in upon the King's Evidence, 



96 

as it is called, though it hold many hours, as it happened in 
most of the trials : he must not have any person to mind what 
hath been sworn against him, and forgotten by him to answer : 
there is a proclamation to call in all persons to swear against 
him, none for him; as many Counsel as can be hired are al- 
lowed to be against him, none for him. Let any person consider 
truly these circumstances, and it is a wonder how any prisoner 
escapes." The foregoing is far from being a complete enumeration 
of the severities to which prisoners" were formerly subjected on 
their trials. The trial of Colledge which gave rise to these re- 
marks of Sir J. Hawles, and other cases in the collection of 
the State Trials, exhibit many more diversified forms of oppres- 
sion. Neither were all these rigorous modes of procedure, 
against which Sir J. Hawles inveighs, abandoned immediately 
after the Revolution; for we find that several of them were 
put in practice at the trials of Lord Preston, and Ashton, of 
Anderton, and of the conspirators engaged in the Assasination 
Plot. And every impartial mind will reflect with horror on 
the atrocious conduct of that Government, which, after the 
passing of the Treason Act, could bring individuals to their 
trial, and put in force against them those cruel regulations 
which it was the object of that Statute to abolish ; at a moment, 
when the time for the operation of the new law was speedily 
to commence, and in one instance, when the next day would 
have conferred the benefits of it upon the prisoner. Jt is like- 
wise deeply to be lamented, that the strenuous opposition which 
the Treason Bill encountered in its progress through the Houses 
of Parliament, cannot fail to blacken the memory of several 
individuals, who are otherwise endeared to posterity by the 

magnitude of their claims upon the gratitude of this nation. 

A striking difference between the form of ancient and modern 
trials in civil matters, is in the manner of counting or plead- 
ing, which appears from the first reports remaining of our 
legal proceedings, to have been originally viva voce. Some 
curious specimens of this practice, of a very early date, are 
given by Mr. Reeves in his History of the Law, which 
resemble the scholastic disputations, so fashionable in those 

days. {Reeves's History of the Law, Edw. I, Edw. II.) A 

distinguishing characteristic of the Verdict is the requisite 
unanimity of the Jurors. In ancient times it was in the 
power of the Judge, when there was a division of opinion 
among the Jurymen, to afforce the Assize, that is, to dismiss 
the minority and to substitute new Jurors continually until an 
unanimous decision of twelve persons was obtained. {Glanville, 
lib. ii. c. 17- Bracton, lib. iv. c. 19- Fleta, p. 230.) So, in ancient 
times, verdicts were often taken according to the voice of the 
majority, or as it was termed, "ex dicto majoris partis." (2 Hale, 
P. C. p. 297. Fitz. Ab. Verd. 40, Bro. Ab. Jurors 53.) However 

it 



97 

it became settled by a solemn decision in the reign of Edw. III. 
that a verdict by less than twelve Jurors was nugatory. (41 Ass. 
11.) And it is doubtful whether the contrary rule ever 
prevailed in prosecutions. (Fleta, p. 52. Kelh. Brit. p. 42.) 
Lenity to the prisoner in criminal cases, and in civil the practice 
of attaints are supposed by Barrington to have been the causes 
for requiring the unanimity of Juries by our law. ( Barrington' s 
Observations on 29th Chap, of Magna Charta.) Incidental to the 
same regulation is the custom of withholding all refreshment 
from Juries until they have delivered their verdict. Barrington 
conjectures from the recital of an ancient Statute, that the object 
of this rule was to prevent opportunities of bribery. Others 
have thought that it arose from a desire to preserve decorum 
in Courts of Justice, by prohibiting legal proceedings after in- 
digencies at the table, and confining them to the time of 
morning, when the mind is in greatest vigor. And this hy- 
pothesis derives countenance from some of the institutions of 
Greece and Rome, and from the language of the Canons of the 
Church. {Taylor's Civil Law, p. 399- Spelman on Terms. Bar- 
rington's Observations on the 34>th and 35th Henry VIII.) There 
are many cases in the State Trials, in which the Juries appear 
to have suffered great hardships on account of their being 
denied refreshment and necessary comfort. (Clarkson's Life 
of Penn, Vol. I. p. 77- Cases of Penn and Meade, of the Seven 
Bishops, Litburne, Archibald Hamilton, in the State Trials. Bar- 
rington's Observations on 34 and 35 Henry VIII. where see the 
passage from Stiernhook de jure Sueonum. Also Emlyris Remarks 
upon the Subject, in the Preface to Hargr. St. Tr. As to canying 
the Jury about in Carts till they have agreed. ig Ass. 6. 41 Ass. 11.) 
In recent times, the unusual length of trials has sometimes dic- 
tated the necessity of an adjournment. (Barrington's Obervations 
on 34 and 35 Henry VIII. and see the References in the Discussion 
of the Subject, Hardy's Case, St. Tr.) So there are several 
instances in which a Jury has been dismissed before giving 
their verdict. (See the Opinions in Sir J. Weddeburn's Case, 
Foster's Crown Law.) But the adoption of this measure simply 
with the design of deferring a trial, because the evidence of 
the Crown is found insufficient for the purpose of conviction, 
will ever be stigmatized as of a piece with the rest of the 
proceedings against the persons suspected of the Popish Plot.— r 
The distinction between the province of the Jury, and that 
of the Judge is an important consideration, arising out of 
the enquiry respecting the verdict. This is a question, which 
from its relation to prosecutions for political libel, has 
given rise to more interesting discussions, than perhaps any 
other subject connected with the jurisprudence of the 
Country. (Parliamentary Debates, a. d. 1792, particularly the 
Opinion of the Judges, the Protest of the Lords, Lord Mansfield's 

Papei; 

G 



98 

Paper, left with the Clerk of the House of Lords, and the Questions 
propounded to Lord Mansfield by Lord Camden. Case of the Dean 
of St. Asaph, St. Tr. Hargr. Co. Litt. 155 b. n. 5. Wynne's 
Eunomus, Dial. iii. Among the older Authorities, Bracton, lib. iv. 
c. 19- Hobbes's Dialogue between a Lawyer and Philosopher, p. 625. 
Leviathan, c. 25. Lord Clarendon's Survey of the Leviathan, p. 1290 
— Another circumstance to which the consideration of the verdict 
leads, is the influence that Juries have had in interpreting and 
modifying the laws. This is a singular fact in the History of 
the Constitution of this Country, but which has hitherto been 
little remarked : some valuable observations on the subject will 
be found in Lord J. Russell's Essay on the English Government; 
and in a late prosecution for murder in a duel in Scotland, the 
topic was introduced with great ability by the counsel for the 
defence. (See Printed Trial for the Murder of Sir A. Boswell.) 

With respect to the penal consequences attaching to Jurors 

on account of their verdict: it is remarkable how often the 
complaint against them, for perjury, is repeated in ancient 
Statutes, and not against the witnesses produced at trials. 
(Barrington's Observations on 11 Henry VII. St. 38 Edw. III. 
3 Henry VI. 23, c. 10. 6, c. 1. 8, c. 1. with the Titles Embracery 
and Decies Tantum, in the Digests.) Scarcely less objectionable 
than direct bribery was the custom which formerly prevailed 
of entertaining the Jury, after giving their verdict, at the ex- 
pence of the successful party. Sir T. Smith in his Common- 
wealth, mentions this to have been the usage in his time : and 
a very curious example of it occurs in a letter written to Arch- 
bishop Sancroft, by the Solicitor employed for the Seven Bishops. 
(Doy ley's Life of Sancroft. See also Sir J. Hawles's Remarks on 
Lord Russell's Case, for the Conduct of the Government in this respect 
during the Reign of Car. II.) The doctrine of attaint is now, 
as Lord Mansfield observed, a mere sound in every case, and 
m many cases it did not ever pretend to be a remedy. (Bright 
v. Eynon, 1 Burr. 390. Com. dig. Attaint.) The practice of grant- 
ing new trials has entirely superseded it; a practice which may 
be traced as high as the year, a. d. 1655, and perhaps the reason 
it cannot be traced earlier, is, that the old reports do not give 
any account of determinations made by the Courts upon motions. 
Barrington states, that no prosecution by attaint had been carried 
on against a Jury for the last three hundred years : Sir T. Smith 
(who wrote his Commonwealth of England in the year a. d. 1565) 
accounts for attaints being disused, and amongst other reasons 
he says, that it was very difficult to procure the attendance of a 
Jury,, in this sort of trial; as people were very averse to be 
instrumental in inflicting upon their neighbours the severe 
penalties ensuing upon a conviction. (Barrington's Observations 
on West. I. Sir T. Smith de Rep. lib. iii. c. 2. 3 Inst. 222- For the 
Lawinihe time of Foftescue, the Statutes, Henry VL 11, c 4. 15, 

c. 5. 

■ 



99 

c. 5. 18, c. 2.) It has been observed by Mi*. Brodie in his 
History of the British Empire, that Fortescue while he speaks 
of the attaint, never gives a hint of any power to try or punish 
a Jury except in that way. This remark is important with re- 
ference to the question, respecting the antiquity of the Star 
Chamber ; for it has been contended, that this Court must have 
been of very early institution, because it is to be supposed that 
there existed somewhere a power to restrain the corruption of 
Juries, and it was found that one Jury would seldom attaint 
another. In the controversy upon this subject, the testimony of 
Sir T. Smith has been cited for the purpose of shewing that the 
Star Chamber, for a long time, seldom ventured to punish juries, 
though it affected the right. Speaking in the reign of Queen 
Elizabeth, he says, that although Juries were often commanded 
to appear before the Court of Star Chamber, the matter was 
commonly passed over with a rebuke: he specifies only two 
instances, and those occuring in a previous reign, in which Juries 
had been fined; "but," says he, "those doings were even then 
of many accounted very violent, tyrannical, and contrary to the 
liberty and custom of the Realm of England." Examples are 
too frequent in English History, of severities having been ex- 
ercised against Jurymen, on account of their delivering verdicts 
which were displeasing to the ruling power of the State, and 
to none does the infamy of such proceedings attach with a deeper 
dye than to Cromwell. (Lord Herbert's Henry VIII, p. 6. The 
Cases of Throgmorton's and Lilburne's Juries, in the St. Tr. and 
see " The World's Mistake in Oliver Cromwell," Had. Misc.) In 
the reign of Charles II. Bushell was brought before the Court 
of Common Pleas, upon a habeas corpus, by which his commit- 
ment appeared to be expressed in the following terms : " That 
being a Juryman among others charged at the Session Court 
of the Old Bailey, to try the issue between the King, and Penn 
and Meade, upon an indictment for assembling unlawfully and 
tumultuously, he did ' contra plenam et manifestam evidentiam ' 
openly given in Court, acquit the prisoners indicted." Vaughan 
the Chief Justice, discharged the juryman, and, in an admirable 
argument, maintained the invaluable doctrine, that the Jury, in 
the delivery of their verdict, which is a judicial function, are 
unaccountable to any power in the State. 



G 2 



100 



CHAP, xxvnr. 



To whom the Prince 1 see no difficulty at all 

in the case, my good Chancellor, to make me hesitate, 
or waver as to the choice I am to make ; particularly 
in the manner you require and propose. For, who 
would not rather live under a law which renders life 
secure and happy, than where the law is found in- 
sufficient for protection, and leaves a man defenceless, 
under a series of insults and barbarities from one's 
enemies? That man cannot in any wise be safe 
either in his life or property, whom his adversary 
(in many cases which may happen) will have it in 
his power to convict out of the mouth of two 
witnesses, such as are unknown, produced in court 
and pitched upon by the prosecutor. And, though 
in consequence of their evidence, he be not punished 
with death, yet an acquittal will not leave him in 
a much better condition after the question has been 
put, which cannot but affect the party with a con- 
traction of his sinews and limbs, attended with con- 
stant disorders and want of health. A man, who 
lives under such a government, as you describe, 
lives exposed to frequent hazards of this sort : ene- 
mies are designing and desperately wicked. Wit- 
nesses cannot well bring about such a wicked device, 
when, what evidence they give in, must be in 
open Court, in the presence and hearing of a jury, 
of twelve men, persons of good character, neighbours 
where the fact was committed, apprised of the cir- 
cumstances in question, and well acquainted with the 
lives and conversations of the witnesses, especially as 



101 

they be near neighbours, and cannot but know whether 
they be worthy of credit, or not : it cannot be a secret 
to every one of the Jury what is done by, or amongst 
their neighbours. I know of myself more certainly 
what is a doing at this time in Berry, where I reside, 
than what is doing in England : neither do I think 
it possible that such things can well escape the 
observation and knowledge of an honest man, as 
happen so near to his habitation, even though trans- 
acted with some kind of secrecy. But, since these 
things are so, I admire very much, that the law of 
England, which in this respect is so commodious 
and desirable, should not obtain all the world over\ 

a The institution of the Jury, possesses a decided advantage 
over every other judicial method of investigating facts, principally 
on account of its publicity, and of the participation in the admi- 
nistration of justice, into which the country at large are thereby 
admitted : the Civil Law, was not, however, so inferior to our own, 
as Fortescue represents, in the calculation of probabilities for the 
ascertainment of truth : the following passage from the Digest, 
containing some observations of the Emperor Adrian, on the 
subject of evidence, will be sufficient to shew, that numerical 
testimony had not that influence upon judicial determinations, 
which Fortescue would insinuate. "Quae argumenta ad quem 
modum probanda? cuique rei sufficiant, nullo certo modo satis 
definiri potest: sicut non semper, ita saepe sine publicis monu- 
mentis cujusque rei Veritas deprehenditur ; alias numerus testium, 
alias dignitas et auctoritas, alias veluti consentiens fama confirmat 
rei, de qua quaeritur fidem. Hoc ergo solum tibi rescribere 
possum summatim : non utique ad unam probationis speciem 
cognitionem statim alligari debere, sed ex sententia animi tui 
te aestimare oportere, quid aut credas, aut parum probatum tibi 
opinaris." 



102 



• 
CHAP. XXIX. 









Chancellor. At the time your highness was 
obliged to quit England, you were very young, 
consequently the natural disposition and qualities of 
your native country could not be known to you ; had 
the case been otherwise, upon a comparison of the 
advantages and properties of other countries with 
those of your own, you would not be surprized 
at those things which now agitate and disturb you. 
England is, a country so fertile, that, comparing 
it acre for acre, it gives place to no one other 
country : it almost produces things spontaneous, 
without man's labour or toil. The fields, the plains, 
groves, woodlands, all sorts of lands spring and 
prosper there so quick, they are so luxuriant, that 
even uncultivated spots of land, often bring in more 
profit to the occupant, than those which are manured 
and tilled; though those too are very fruitful in 
plentiful crops of corn. The feeding lands are 
likewise enclosed with hedge rows and ditches, 
planted with trees, which fence the herds and 
flocks from bleak winds, and sultry heats, and are 
for the most part so well watered, that they do not 
want the attendance of the hind, either day or night. 
There are neither ivolves, bears, nor lions in England; 
the sheep lie out a nights without their shepherds, 
penned up in folds, and the lands are improving 
at the same time 3 : whence it comes to pass, that the 

a There is evidence both of wolves and bears having existed 
in this Country. (Camden's Brit. Derbyshire, Yorkshire, Cale- 
donia, Archceoh Antiq. Soc. Vol. IN. p. 3. Vol. X. p. 162. 

Dugdalc'i 



103 

inhabitants are seldom fatigued with hard labour, 
they lead a life more spiritual and refined : so did 
the Patriarchs of old, who chose rather to keep 
flocks and herds, than to disturb their peace of mind, 
with the more laborious employments of tillage and 
the like : from hence it is, that the common people 
of England are better inclined and qualified to 
discern into such causes, which require a nice 
examination, than those who dwell upon their farms, 
and are constantly employed in husbandry affairs, 
whereby they contract a rusticity of understanding". 

Dugdale's Warwickshire, p. 298. Pennant's Zoology, p. 163.) 
And notwithstanding the account given by Fortescue, of the 
prolific nature of the English soil, we meet with repeated in- 
stances of famines, attended with dreadful consequences, from 
the time of the Conqueror, to that of Henry VI : indeed, in 
the same reign in which Fortescue wrote, wheat was selling 
from 2*. 6d. to 3s. 4>d. the bushel, and the poor people were 
obliged to make themselves bread of fern and oats. (Strutt's 
Antiq. Vol. II. "on the Husbandry of the English." Respecting 
the Nature and Extent of the ancient Woodlands, Evelyn's Sylva, 
Lib. iii. c. 6. For other circumstances respecting the ancient 
Condition of the Country, see Tracts on the Vineyard Controversy ; 
and for general Descriptions, Pref. to Harrington's Oceana. 
Sir W. Temple on Gardening.) 

b The fleeces of this Country, are noticed by many old authors: 
thus an ancient writer, addressing himself to England, says, 
" Licet maris augustata littoribus brevi terrae spatio disten- 
daris, tibi tamen ubertatis tam famosae per orbem benedixerunt 
omnium littora nationum de tuis ovium velleribus calefacta." 
Several causes conspired to give a pre-eminence to pasturage over 
agriculture. The dealing in grain was subjected to many 
impolitic restrictions, arising from mistaken views upon the subject 
of population ; and from absurd apprehensions of the consequences 
of forestalling; an offence, which in the legislative rhetoric of 
the time of Edward I, was denounced as rendering a man " totius 
communitatis et patriae publicus inimicus." The settling also of 
Flemings in this Country, and the protection afforded by several 
Statutes, tended to increase the importance of our woollen manu- 
factures. But another cause of more effectual operation remains 
to be noticed, for before the time when Fortescue's book was 
written, an alteration in the habits of the aristocracy had com- 
menced, and they began to be induced, from a motive of in- 
creasing their revenues, to dismiss their numerous adherents, 

and 



104 

England is so thick-spread and filled with rich and 
landed men, that there is scarce a small village 
in which you may not find a knight, an esquire, 
or some substantial householder, commonly called, 
a Frankleyne ; all men of considerable estates: 
there are others who are called Freeholders, and 
many Yeomen of estates sufficient to make a sub- 
stantial Jury, within the description before observed. 
There are several of those Yeomen in England who 
are able to dispend by the year a hundred pounds, 
and more : Juries are very often made up of such, 
and, in causes of consequence, they consist of 
knights, esquires, and others, whose particular 
estates, in the whole, amount to upwards of three 
hundred pounds a year c . Wherefore it is not to 

and to let their lands in large tracts, to persons who would pay 
considerable rents: which practice speedily introduced an 
extensive system of pasturage. (See Brodie's British Empire, 
Vol. I. p. 19, 29. A Proclamation, a. d. 1521. cited by Stow. 
Rossi. Hist. p. 39, 88, 114. Rous died at an advanced age, a. d. 
1491.) A system that finally occasioned a striking alteration 
in the appearance of the country. It is with reference to this 
circumstance, that Sir T. More, speaking of the sheep, says, 
that they had become, " tam edaces, tamque indomiti, ut homines 
devorent ipsos, agros, domos, oppida vastent ac depopulentur." 
(Sir T. More's Preface to his Utopia. Strype's Memorials, Vol. I. 
p. 392. Vol. II. p. 141. And see Latimer's Account of the Cir- 
cumstances of his own Family, first Sermon Preached before King 
Edward.) The progress of this change in the occupations 
of the people, was in vain attempted to be restrained by the 
Legislature, and was pregnant with many consequences of great 
importance, both as they regarded the manners of the nation, 
and the spirit of the Government. (See the Observations respect- 
ing the Statute for the Conservation of Farm Houses, in Bacon's 
Henry VII. Bacons Speech in D' Ewes' s Journal, p. 551. Obser- 
vations at the Close of Tirringham's Case, 4 Rep. 3 Inst. 204, 
and the Statute of 25 Henry VIII. limiting the size of Flocks 
of Sheep, and the Preamble, which mentions the Extent of the 
Grievance then felt. With reference to the Effects of the System of 
Pasturage and Inclosure, upon the Progress of Towns, see 12 Ric. II. 
c. 5 ; 7 Hen. IV. c. 17; 2 Hen. V. c. 4; 4 Hen. V. c. 4.) 

r Fortescue calculates the value of property by "skuta," 
which were gold coins of the value of 3s. 4-d. (Fleetwood Chr. 

Pret. 



105 

be imagined that persons, in such wealthy circum- 
stances, can be suborned or prevailed on to perjure 
themselves ; they are supposed to be restrained, not 
only through a religious principle, but also as they 
regard their honor and reputation, as they would 
avoid the very great scandal and detriment which 
must accrue by such behaviour; and further, lest the 
infamy should extend to and affect their heirs. 
Other countries, my Prince, are not in such an 
happy situation, are not so well stored with inha- 
bitants. Though there be in other parts of the 
world, persons of rank and distinction, men of great 
estates and possessions, yet they are not so frequent, 
and so near situated one to another, as in England ; 
there is no where else so great a number of land- 
owners: in a whole town, in any other country, you 
can scarce find a man of sufficiency enough to be 
put upon a Jury : for, except in large cities and 
walled towns, there are very few, besides the nobility, 
who are possessors of estates, or immoveable goods, 
to any considerable value. The nobility do not 
keep in their hands any great scope of feeding-lands; 
it does not comport with their rank and quality 
to cultivate vineyards, or put their hands to the 
plough : and yet the main of their possessions con- 
sists in vineyards and arable lands, except some 
meadow grounds, which lie along the great rivers, 

Pret. p. 23.) We find mention of several other foreign gold coins, 
circulating in this Country, as Byzants and Florences, although 
our Sovereigns in the times of Edward III, and of Henry III, 
if not in the intervening reigns, made gold coins at their mints. 
{Liverpool on Coins, p. 38.) In Fleetwood's "Chronicon Pre- 
tiosum," is contained an account of the price of commodities 
and of labor, the worth of the precious metals, and the state of the 
coinage throughout the reign of Henry VI ; it consequently is 
calculated to afford a correct estimate of the value of money 
when Fortescue wrote. {See also Henry's History, Vol. V. p. 525. 
For the Value of Land in the time of Henry VI. Paslon Letters, 
Vol. III. Lett. 21 ; and on the Depreciation of Money, Sir G. S. 
Evelyn's Endeavours to ascertain a Standard of Weight and 
Measure, Philosophical Transactions, a. d. 1798-) 



106 

and the woodlands; the pasture of which is in 
common to their tenants, and neighbours. How 
can it then be, that in such countries a Jury can be 
made up of twelve honest men of the neighbourhood, 
near where any fact in question is brought on to 
trial ; seeing they cannot be well called of the 
neighbourhood, who live at any remote distances.' 
It will be very difficult to make up a Jury of twelve 
men, though remote from the place where the fact 
in question lies, after that the party accused shall 
have challenged his thirty-five peremptorily, who 
lived nearest to the place: wherefore in those 
countries they must make up a Jury, either of 
persons living at great distances from the place 
where the fact was committed; persons wholly 
unacquainted with the parties and their circum- 
stances; or the Jury must consist of people of 
inferior rank, who have no proper notion, either 
of shame or infamy, who have no estates or charac- 
ters to lose ; so prejudiced and incapable in point 
of education, as to be able clearly to discern on 
which side the truth lies. These things considered, 
you may cease, my Prince, your surprise, why that 
law, by means of which in England the truth is 
enquired into, is not in common to other countries, 
because other parts of the world cannot furnish 
Juries of so great sufficiency, or equally qualified d . 

d The Prologue to Chaucer's Canterbury Tales, presents an 
interesting description of the characteristic qualities, by which 
the middle ranks of the people were formerly distinguished. 
A particular account is there given of the knight, the esquire, 
the yeoman, and the frankleyne, mentioned in the text. The 
distinctions of rank, which have been formed in this Country, 
are important, as connected with the progress of national manners : 
in this point of view, the Statute of Henry V, of additions, 
deserves particular attention: Fuller, in his English Worthies, 
supposes that it was the circumstance of the insurrection of 
Wat Tyler, and Jack Straw, which made the English gentry 
desirous of not being confounded with the levellers and rabble ; 
but the adoption of these distinctions in society, will probably be 

ascribed 



10? 

ascribed to the operation of more general causes: the same 
writer mentions, that in the reign of Henry VI, the addition 
"de" such a place came to be left off, and that of knight 
and squire to be assumed. Camden observes, that the name 
of esquire, which in ancient times, was a name of charge and 
office, did not become a title of dignity, till the reign of Richard- II ; 
Spelman, in his Treatise upon Ancient Deeds, notices that some 
wrote themselves " armigeros," in the reign of Edward III ; but 
he agrees with Fuller, who says, that additions in writing, 
did not become usual, till the time of Henry the Sixth, and 
he dates the general assumption of the title of esquire, from 
the reign of James : he mentions, that the addition of yeomen, 
was seldom used in writings, until the reign of Henry VIII, 
a circumstance, which may be thought to receive illustration 
from the remark of Bacon, that Henry VII, amortized a great 
part of the land of the Country, to the occupation and hold 
of the yeomen, of a condition between gentlemen and peasants. 
This chapter will be read with considerable interest, as shewing 
the importance of the middle ranks of society, in the time 
of Henry VI. The reader may be induced to compare it 
with the Statute 23 Henry VI, c 15. which points out the 
proper class of persons, out of which knights of the shire ought 
to be chosen : and the text may be thought to afford a valuable 
illustration of that most important Statute, passed in the same 
reign, which regulates the qualification of voters, at county 
elections. — In another point of view, the history of ranks in this 
Country, may be deemed of importance, when it is considered 
that the permanence and the improvement of the English Con- 
stitution, is, in a great measure, owing to the absence of exclusive 
privileges, attached to the lesser nobility, and to the legal equality, 
for every essential purpose, of all ranks below the Peerage. 
(Sir T. Smith " de Republicd," lib. i. c. 20, 21. Lord J. Russell 
on the Constitution, c. 1. Hallam, Vol. II. p. 198. For some Ex- 
ceptions to this Principle, see Statute of Merton, c. 7- Statute 
34 Edw. III. 3 Inst. 141. Britt. c. 25. fol. 49- b. 23 Henry VI. 
c. 14.) Some writers have attributed much of the excellence of 
the Constitution to the circumstance, that the knights anciently 
sat in one assembly with the citizens and burgesses. {Lord 
J. Russell on the Constitution, c. 1. Hallam' s Middle Ages, Vol. II. 
p. 8. See on this Point, Append, to Hume's History, Vol. II. 
n. F.) — Respecting the conferring of titles by the Sovereign of 
this Country, it has been observed, that Walsingham made 
several unsuccessful attempts to obtain the honor of knighthood, 
at the hands of Elizabeth. (Welrvood's Memoirs, p. 14.) The list 
of knights created by James, on his accession to the throne, in 
his way to London, may be seen in Mr. Ellis's recent collection 
of Original Letters. There issued many commissions at different 
periods, in pursuance of the Statute "de Militibus," for the 

purpose 



108 

purpose of compelling persons, of a certain estate, to take upon 
themselves the order of knighthood: this practice is supposed 
to have materially contributed to produce the troubles and 
distresses, of the reign of Edward II; and when revived by 
Charles I, it greatly augmented the public discontents: Mr. Brodie 
observes, that persons who came within the operation of this 
Statute, were not, on that account, authorized to use the title of 
knights. {Rymer's Feed. Vol. XV. p. 493, 497> 504. Barrington's 
Observations on 1 Edw. II. 2 Inst. p. 594. Vol. XIV. Arch. Antiq. 
Soc. p. 202. Clarendon's History, lib. i. p. 53. Brodie' s History 
of the British Empire, Vol. II. p. 282.)— The present chapter 
receives a particular illustration, from the circumstance, that 
a catalogue of the gentry of England, was composed by Com- 
missioners in the reign of Henry VI, of which an account is 
given in Fuller's Worthies; another, similar to it, was made 
in the reign of Henry VIII. The writings of our legal antiqua- 
rians, abound with a variety of curious particulars explanatory 
of the early distinctions of ranks in this Country. {See Copy 
from a Mamiscript in the Harleian Library, respecting Esquires, 
Strutt's Antiquities, Vol. III. p. 15. Concerning the Appellation of 
Rascal, Sir T. Smith de Republica, lib. i. c. 21. Birch's Memoirs 
of Elizabeth, Vol. II. p. 508. D" Israeli's Curiosities of Literature. 
Of Knights, Selden's Titles of Honor ; and see ibid, respecting the 
Addition of " Chivalier " to Peers, and on the word " Sir." Spelman 
de Milite Disserlatio. Of the Franklin, 1st Part Shakespeare's 
Henry IV, Act 2, Scene 1. Cymbeline, Act. 3, Scene 2; and 
further, upon the Subject of Ranks and Precedency in England, 
2 Inst. 594. 667- 4 Inst. 36l. Keilway's Rep. 58 a. Barring- 
ton's Observations on 20 Rich. II, 34 Edrv. Ill, 1 Hen. V. 
Selden's Table Talk, Art. Gentleman. Spelman on Ancient Deeds. 
Sir T. Smith de Rep. lib. i. c. 18, 19- Hey wood on the Distinctions 
of Society among the Anglo-Saxons. Millar on Ranks. Verstegan's 
Decayed Intelligence, c 10. Camden's Britannia "on the Degrees 
in England," p. 234, and the Glossarists.) 



109 



CHAP XXX. 



Prince. Though we have already agreed in 
it, that "comparisons be odious;" yet the Civil 
Law, as you have made out the comparison, and 
set forth the reasons, is delivered from all imputation 
of blame or defect : for, although you have preferred 
the Laws of England to it, yet the defect is not in 
the law itself; neither the Civil Law, nor the first 
legislators stand impeached: you have only demon- 
trated that the country, where it prevails, is the 
occasion of it; by means of which it does not so 
effectually get at the truth, in dubious cases, as the 
Laws of England do ; that the Law of England, in 
the case just now discussed by you, is better accom- 
modated for England than the Civil Law, is out of 
dispute; and we cannot have the least inclination 
to introduce the Civil Law instead of it: but this 
superior excellence of the Law of England does 
not happen through any blameable defect in the 
other law; but, as you say, the wealth and popu- 
lousness of the country are the cause a . 

a The most zealous admirer of the trial by Jury, must admit, 
that on numerous occasions it is found to be a partial or an 
incompetent tribunal. Yet it would perhaps be impossible by 
any other form of procedure to render the decision of judicial 
questions, subject, in a less degree, to the influence of prejudice 
or bias : it frequently also happens, that a Jury is better qualified, 
than any other description of persons, to determine the matter 
submitted to its consideration. But if it were a valid objection 
to the relaxing of the rules of evidence established in our Courts, 
that Juries do not ordinarily possess that capacity and dis- 
crimination 



110 

crimination, which a more liberal admission of proof would 
render indispensable : it canpot be denied, that the policy of 
the State might devise some institution which in this respect 
would be more competent for the eliciting of truth. Still a 
prudent legislator would pause before he ventured, in any case, 
upon removing the decision of causes out of the hands of the 
people. It is a peculiar feature in the English Constitution, 
that what in other States is the work of Government, amongst 
us is done by the nation. It would be impolitic to make any 
infraction upon this principle, which should operate to take away 
from the mass of the people the performance of those duties, 
the discharging of which, independent of its primary object, 
the investigation of facts, is found productive of inestimable 
consequences both moral and political. In prosecutions instituted 
by the Government of the Country, the trial by Jury will always 
be upheld on account of the protection it affords to individuals, 
in an unequal contest with the authority of the State : In the 
most perilous and arbitrary times, it has proved a safeguard to 
the subject : The verdict of the Jury which acquitted Lilburne, 
is said, by Clarendon, to have occasioned more regret to Cromwell 
than the loss of a battle : The acquittal of the Seven Bishops 
animated the dispositions of the nation to a successful effort for 
shaking off the yoke of the Stuarts. The nature of that security, 
which at such times the trial by Jury is peculiarly calculated to 
give to the subject, is luminously explained by Prynne in his 
Protest for Sir J. Maynard. Sir E. Coke in several parts of his 
Institutes, takes occasion to admonish his readers against all 
infringements on the "ordinary and precious trial per legem 
terrae" from the example of the proceedings of Empson and 
Dudley : These " bold men, and regardless of fame " were con- 
spicuous for their attempt to introduce absolute and partial 
trials by discretion: they paid, however, the penalty of their 
guilt by an ignominious death ; and they have been consigned 
to perpetual obloquy, by the immortal historian of the times. 
■ i 



ill 



CHAP. XXXI 



But, my good Chancellor, though the method 
whereby the Laws of England sift out the truth, 
in matters which are at issue, highly pleases me; 
yet there rests one doubt with me, whether it be 
not repugnant to Scripture : Our blessed Saviour 
says to the Pharisees (St. John viii. 17-) "It is 
written in your law that the testimony of two men 
is true." And, in confirmation, he subjoins in the 
very next verse, ec I am one that bear witness of 
myself, and the Father that sent me beareth witness 
of me." The Pharisees were Jews; wherefore it 
is the same thing to say, " It is written in your law," 
as to say, "It is written in the Law of Moses" 
which was no other than the Law of God, given 
by Moses to the children of Israel; wherefore to 
contradict this Law of Moses, is, in effect, the same 
as to contradict the Law of God ; from whence it 
follows, that the Law of England deviates from this 
Law of God, which it does not seem lawful in any 
wise to impugn. It is written also (Matt, xviii. 16.) 
that our Saviour, speaking of offences, and forgiv- 
ing one another, amongst other things, delivers 
himself thus, " If thy brother will not hear thee, 
then take with thee one or two more, that, in the 
mouth of two or three witnesses, every word may 
be established." Now, if in the mouth of two or 
three witnesses, God will establish every word ; why 
do we look for the truth in dubious cases, from the 
evidence of more than two or three witnesses. No 
one can lay better or other foundation, than our 



112 



Lord hath laid. This is what, in some measure, 
makes me hesitate concerning- the proceedings ac- 
cording to the Laws of England, in matters of 
proof, wherefore, I desire your answer to this ob- 
jection 3 . 

a Sir M. Hale, in his Tract on the amendment of the law, 
considers the applicability of the Mosaic Dispensation to the 
existing circumstances of the world : his work contains many 
sensible observations upon the subject discussed in the present 
chapter. The Puritans went the length of insisting, that the 
judicial laws of Moses, for the punishment of offences, ought to 
be observed : The necessity believed to be imposed by the Law 
of God, for proving an offence by two witnesses, has frequently 
been the subject of argument, in judicial proceedings. (Cases 
of Vaughan, Sir J. Fentvick, Bishop Alterbury, St. Tr. Reniger 
v. Fogossa, Plotvden's Comm. 8, Shotter v. Friend Cortherv 142/ 
and see 3 Inst. 26; also, Mosaicarum et Romanarum legum vetus 
coUatio, cum notis Pithcei.) 



' 



: 






m 



CHAP. XXXII. 



Chancellor. The Laws of England, Sir! do not 
contradict these passages of Scripture for which 
you seem to be so concerned ; though they pursue 
a method somewhat different in coming; at, and 
discovering the truth : how does that law of 
a general council prejudice or comdemn the testi- 
mony of two witnesses, whereby it is provided, that 
the Cardinals shall not be convicted of any crime, 
unless upon the deposition of twelve witnesses? If 
the testimony of two be true, a fortiori, the testi- 
mony of twelve ought rather to be presumed to 
be so. The rule of law says, "the more always 
contains in it that which is less." So, the repay- 
ment of whatsoever the host spent more than the 
two-pence, towards the taking- care of the man who 
fell amongst thieves, was promised to be paid punc- 
tually to him by the good Samaritan, when he came 
again. Shall not an impeached person, who endea- 
vours to prove himself to have been in another place 
at the time of the fact alleged and committed, be 
obliged to produce more than two or three witnesses, 
when the prosecutor has proved, or is ready to prove 
the charge by as many. So that person who takes 
upon him to convict any number of witnesses of 
perjury, must of necessity produce a greater number 
of witnesses against them ; so that the testimony of 
only two or three witnesses shall not, in all cases, be 
presumed to be true. But, the meaning of the law 
is this, that a less number than two witnesses shall 

H 



114 

not be admitted as sufficient to decide the truth in 
doubtful cases. And this appears from Bernard, 
(Extra, de testi. ca. licet in glossa ordinaria) where 
he puts many cases, in which, by the laws, more 
than three witnesses are required ; in some cases, 
Jive, in others, seven. And, that the truth in some 
cases may be proved by two witnesses only, when 
there is no other way of discovering it, is what the 
laws of England likewise affirm. As, where facts 
are committed upon the high sea, without the body 
of any County, which may be afterwards brought to 
trial before the Admiralty - Court ; facts of this kind, 
by the Constitution of England, are to be proved by 
witnesses, without a Jury*. In like manner are pro- 
ceedings before the Lord Constable, and Earl 
Marshal, upon a fact committed in another kingdom, 

a The first case in our law, extant, relating to the marine 
jurisdiction, is in the time of Edward I : but the judicial power 
of the Admiral does not appear to have excited the attention of 
the Legislature, until the reign of Richard II, when his autho- 
rity was defined. The Common Lawyers formerly regarded 
the proceedings in the Court of Admiralty with a jealous eye : 
In the reign of James, formal articles of complaint were pre- 
sented against the Judges, for the purpose of restraining them 
in their practice of granting prohibitions : to these the Judges 
replied in writing, justifying the grounds upon which they 
proceeded: in the course of the discussion the authority of 
Fortescue in the text, is appealed to : the part of the Institutes 
in which the argument concerning the Admiralty is related, 
has been animadverted on by Prynne, in a manner exhibiting 
the extraordinary stores of his erudition. {Prynne's Animadver- 
sions, p. 75. 4 Inst. c. 22, Artkuti Admiralitatis.) In the reign 
of Charles II, the jurisdiction of the Court of Admiralty again 
became the subject of contention, and there is preserved an able 
argument delivered by Sir L. Jenkins before the Lords on that 
occasion. {Wynne's Life of Sir L. Jenkins, p. 76.) Some in- 
teresting particulars respecting this Court, will be found in the 
following authorities. (Spelman's Treatise on the Jurisdiction of 
the Admiralty, Selden's Mare C/ausum, Cases of the Admiralty, 
12 Rep. Harl. Misc. Vob VIII. p. 371. Luder's Tract on the 
Laws of Orleron. Zouch's Admiralty Jurisdiction. Nicholson's His- 
torical Library, Part III. 4 Inst. 124. where the Admiral is called 
by Coke, the English Neptune. Reeves's History of the Law, 
Rich. II. Selden's Notes to Fortescue.) 



115 

so as the cognizance of it belong to the jurisdic- 
tion of the Court of Chivalry *'. So, in the Courts 



b In arbitrary times the Court of Chivalry, from the circum- 
stance of its proceeding not being controlled by the presence 
of a Jury, has been deemed a suitable instrument for the op- 
pression of the people. (See the 26th Article of the Charges pre- 
ferred against King Richard II. Hay-ward, p. 201. Also Rot. Pari. 
5 Henry IV. Vol. III. p. 530. Hallam, Vol. II. p. 360.) In the 
time of Charles I, it is represented as giving more damages for 
words, not actionable, in two days than all the Juries in all the 
Courts of Westminster Hall, during the term and the sittings after. 
{Clarendon's Life.) Mr. Hume has adduced the patent of High 
Constable, granted to Earl Rivers by Edward IV, to prove the 
arbitrary nature of that office ; but Coke pronounces this to have 
been a most irregular precedent. (4 Inst. 127, ond see further on 
this Patent Hallam' s Middle Ages, Vol. II. p. 36l. Brodie's Intro- 
dvction, p. 227 ; and see ibid, respecting a Statute of Edw. VI, cited 
by Hume on this Subject.) After the attainder of the Duke of 
Buckingham, in the reign of Henry VIII, by which the office 
of Lord High Constable became forfeited to the King, the 
authority and charge of it were deemed too ample to be 
intrusted to a subject. Cardinal Wolsey was desirous of filling 
this office, but was thwarted in his attempt, by the patriotic 
resistance of Sir T. More. It has been a controverted question, 
whether during the vacancy of the office of constable, the juris- 
diction incident to the Court of Chivalry, can be exercised 
by the Earl Marshal alone. (See the Authorities collected, 
Hargr. Co. Lift. 74 b. n. 1.) The earliest notice of the autho- 
rity of the Court of Chivalry, is in the reign of Edward III; 
its powers were first defined in that of Richard II. The 
Statute 1 Henry IV. c. 14. contains a provision, the effect 
of which was to prevent the determination of any matter 
in the Court of Chivalry, which could be tried at Common 
Law. Whilst the Crown was in possession of territories 
on the continent, there was great employment for this Court: 
but the necessity of resorting to it was in some measure 
diminished by means of a fiction, devised in the time of 
Edw. Ill, to make matters arising abroad, cognizable by 
a Jury from an English County: and its criminal jurisdiction 
was rendered less necessary, by the Statute of Henry VIII, 
for trying treasons committed beyond sea. (A variety of Par- 
ticulars respecting the Authority of this Court, and the manner 
of its Proceedings, -will be found in the following References. Reeves's 
History of the Law, Edw. III. Rich. II. Lombard's Arckeion, 
p. 51. 4 Inst. 123. Several Tracts in Heame's Discourses, 
Selden de Comite Mareschalli. Runnington's Hale on the Common 

Law, 
H 2 



116 

of certain liberties in England, where they proceed 
by the Law of Merchants, touching contracts between 
merchant and merchant, beyond the seas, the proof 
is by witnesses only : because in such like cases, 
there is not of the neighbourhood a number suffici- 
ent to make up a Jury of twelve men : as in contracts 
and other cases arising within the kingdom is usually 
done. In like manner if a deed, in which witnesses 
are named, be brought into the Courts of law, 
process shall go out against such witnesses, who, 
together with a Jury shall enquire upon their oaths, 

Law, p. 39, 40 a. Madox's Exchequer, p. 27> Spelm. Gloss. 
Voc. Constabularius, Cotton's Posthvma, p. 64. Harg. St. Tt. 
Vol. XI. p. 124. Hargr. Co. Litt. 74 b.n.l. There is no Record 
of Cases in the Court of Chivalry ; Ruskworth, who had kept an 
account of them, lost his Notes, by lending them to a person who 
never returned them.) 

" A variety of particulars respecting the operation of the 
Law Merchant, and the course of proceedings in the Court 
of the Mayor of the Staple, are collected in a chapter of the 
fourth Institute : and much information upon the subject will 
be found in Prynne's Animadversions. It was enacted by the 
Statute 36 Edw. III. c. 7, that Merchant Strangers might either 
sue before the Mayor of the Staple, or at Common Law. The 
proceedings in a particular cause, which was tried according 
to the Law Merchant, in the reign of Edw. II, are thus related 
by Selden: "John Combton brings Debt secundum Legem 
Mercatoriam upon a Tally, against another Merchant, and 
tenders Suit by Two Witnesses: The Defendant Wages his 
Law, but the Judgment is thus by Ornesby pronounced. ;<j(0tjn 

be (ftombton i&arcbanb ilort tin brief ctitw ber0 un 
Ittauf Ittarcfianb et bemanbe vi. ffcta rfc0 par un $u& 

ttCtC0 fOrttlC 0ClOn U \t$ JttarCtjanfc (it had been com- 
menced by Justicies, and came out of the common pleas into the 

Eire) et ab mt» abant un tatlle la quelle tl teuber a 
prober per n, 0, per 'tt tctyarb tt par Oeffren que 
eateutnt al ulee me0urrr (the Debt was due for Come) 
et al liberer, me0 bott0 per boetre leg bou0 boubrc0 
cobcrer la quele ce0t cort en ceo ca0 ne boet mn 
re0ceiber et reftt0C0 la probe que tl bott0 tenb 0elon 
leu ittarrijanb et 0elon la mature be 0un brtefe, per 
que a garb erst court que ;?jo!)t? re0cobere 0a Debt 
bcr0 tbou0 come ber0 non befenbu et 010 bammagc0 

bf Cent 0OU0- (Selden ad Fortescue : and see Bracton 334 a. 
444 a. On the Pipomder Court, Harrington's Observations on 
17 Edw. IV.) 



117 

whether it be the deed of that party, whose it is 
supposed to be d . Wherefore, the law of England 
does not call in question any other law which finds 
out the truth by witnesses, especially when the 
necessity .of the case so requires. The Laws of 
England observe a like method, not only in the 
cases already put, but in some others, which it is not 
material now to enlarge upon : but it never decides 
a cause only by witnesses, when it can be decided by 
a Jury of twelve men, the best and most effectual 
method for the trial of the truth ; and, in which 
respect, no other laws can compare with it. This 
proceeding- is less liable to the hazard of bribery, 
subornation, or other sinister methods; neither can 
this method of proceeding in any case miscarry for 
want of evidence: what the witnesses give in upon 
oath cannot but have its due effect : neither can 
a Jury be perjured, but that for such their crime 
they must expect a very severe punishment, and the 
party thereby aggrieved is, and will be entitled to bis 
remedy. These things are not transacted at the will 
and pleasure of strangers, or parties wholly unknown, 
but upon the oaths of honest, considerable and cre- 

d Whenever the witnesses of a deed were joined with the 
Jurors, they so far differed from the panel, that they could 
not be challenged, nor was their concurrence necessary to 
complete the verdict. It was a rule, that the Jurors should 
be exempt from attaint, if the witnesses agreed with them ; but 
if they dissented, the Jurors were liable as in other cases.. 
{Reeve's History of the English Law, Edw. III. See further 
as to these Witnesses, 2 Inst. 448. 662. 3 Inst. 112. 130.) The 
vexatious delay which was sometimes occasioned by fraudulently 
keeping the witnesses from appearing, was the subject of 
legislative redress, in the reigns of Edw. II, and Edw. III. 
{Reeve's History, Edw. II. Edw. III. Barrington's Observations 
of 12 Edw. II. St. 1.); and this abuse rgadually led to the 
abolition of the practice of summoning them. The clause of " his 
testibus," in the deeds of subjects, continued until, and in the 
reign of Hen. VIII. (Co. Litt. 6 a. 2 Inst. 78.) Many curious 
particulars concerning the witnesses to deeds, are to be found 
in Hickes's Dissertatory Epistle. Spelman on Ancient deeds, 
Madox's Formulare Anglicanum. 



118 

ditable men, who value their character, who are 
neighbours to the parties concerned, to whom there 
can be no cause of challenge or distrust as touching 
the verdict they shall give in. Oh ! what detestable 
villanies often happen from the method of proceed- 
ings by witnesses only. If a man contract matrimony 
in a clandestine manner, and afterwards before wit- 
nesses, betroth himself to another woman. In this 
case the Contentious Court will oblige him to con- 
summate with this last woman ; and the Penitential 
Court will adjudge him to cohabit with the first, if 
he be duly required thereto ; and he will be obliged 
to do penance every time he shall be informed against 
for cohabiting with the other woman, to whom he was 
so betrothed; nay, though in both courts, one and 
the same man be the Judge. May one not say in 
the case before us, as it is written concerning the 
Behemoth, (Job xl. 17.) that indeed it is very 
intricate and perplexed. The person contracting 
shall never afterwards cohabit with either of the 
women, or with any other woman, without being 
prosecuted for so doing. A mischief of this kind 
cannot possibly happen in any case, according to 
the proceedings of the Law of England, though 
a Behemoth himself were solicitor in the cause. 
Are you not now convinced, most excellent Prince, 
that the more objections you raise against the Laws 
of England, the more amiable and resplendent they 
appear 6 . 

It may not be irrelevant in this place, to notice those 
parliamentary proceedings of a judicial nature, which have 
superseded, in particular instances, the trial by Jury. Such 
are Impeachments, Bills of Pains and Penalties, and Bills of 
Attainder. 

In examining the jurisdiction of the House of Lords, in 
matters of judicature, it is necessary to bear in mind, that the 
Peers formerly sat in two distinct capacities. One, as the as- 
semblage of the Lords Spiritual and temporal of the kingdom : 
the other, as the Magnum Consilium, composed of the Lords- 
in Parliament in conjunction with the Consilium Regis: that, 

however 



119 

however, about the time of Richard II, the authority of the 
assistants to the Lords, while sitting in council, dwindled 
away. In their first capacity the Peers tried their own 
members for treason, misprison of treason, and felony : in 
the last, they received petitions upon matters of all kinds, 
civil as well as criminal. The exercise of their jurisdiction, 
which resulted from the functions of the Magnum Consilium, 
was very much curtailed by several Statutes, particularly 
by the Act of 1 Henry IV. From this origin, the present 
authority of the Lords, in matters of judicature arose, and its 
proper boundaries have since been limited and defined, not 
without producing differences between the several branches of 
the Legislature, which created serious impediments to their 
proceedings. In the progress of these disputes, the power of 
accusation before the Peers, on the behalf of the King, was 
acknowledged to be illegal, on the occasion of the celebrated 
case of Lord Kimbolton : and the presentment of articles by 
Lords' appellant, was adjudged contrary to law, in the in- 
stance of the proceedings commenced by the Earl of Bristol 
against the Earl of Clarendon. One kind of judicial proceed- 
ing, as ancient, at least, as the time of Edward III, that of 
impeachment before the Peers by the Commons, in the charac- 
ter of the Grand Inquest of the nation, has been universally 
acknowledged to be unrestrained by any Statute, made to confine 
the jurisdiction of the Council or of the House of Lords. The 
use, however, of this mode of prosecution was suspended, on 
account of the preference given to the proceeding by Bills of 
Attainder, or by information in the Star Chamber, during the 
reign of Edward IV. and those of the succeeding Princes, till the 
middle of the reign of James. In later times, several important 
circumstances connected with parliamentary impeachments, have 
been made the subject of learned enquiry and debate, and in 
some instances the law in respect of them, has been declared 
by the Legislature. Of this description is the King's power of 
pardoning, with a view to determine an impeachment; the 
necessity of a High Steward being appointed to preside at the 
trial ; the revival of an impeachment after a dissolution of 
Parliament ; its effect in suspending the proceedings of inferior 
Courts upon the same charge; the liability of Commoners to 
this species of trial in capital cases ; the right of the Bishops 
to vote upon preliminary points; together with many other 
questions relative to the order of proceedings ; the commitment 
of the person accused; and the power of liberating him on 
bail. The events which have given rise to these discussions 
are some of the most interesting, that the domestic history of 
the Country records. 

With respect to Bills of Attainder, and of Pains and Penalties, 
it appears, that the right of the Commons to participate in the 

judgments 



120 

judgments of the Lords was negatived, in a solemn manner, 
in the reign of Henry IV; a circumstance which forms a 
prominent feature in subsequent discussions concerning the 
judicature of Parliament: and there appears to have been no 
attempt on the part of the Commons, either during that or 
the two succeeding reigns, to revive their claim. However, 
in the reign of Edward IV, it was deemed expedient to submit 
the proceedings against the Duke of, Clarence, to the consider- 
ation of the House of Commons : and in the time of Richard III, 
and the following reigns, there are no judgments by the Lords 
alone. Bills of Attainder were multiplied to an appalling extent 
in the reign of Henry VIII. That sanguinary monarch was 
instructed by Cromwell, Earl of Essex, that an attainder would 
stand good in law, although the accused were never allowed 
to be heard in vindication of his innocence : a doctrine which 
proved as fatal to himself, as it was pernicious to his Country. 
Of the manner of which proceeding Sir E. Coke has said, 
"Auferat oblivio, si potest, si non, utcunque silentium te- 
gat." 

The power of impeachment has been designated by Mr. 
Lechmere, as a privilege belonging to the Commons, at least 
as valuable as that of giving money, which belongs solely to 
them. It has justly been deemed a most important right in 
the frame of the English Constitution, for the punishment 
of offences of a nature affecting the public interest, in 
cases within the jurisdiction of the Courts of Westminster 
Hall; but where the description of the offence is such as a 
Jury is incompetent to' decide upon, or where the offender 
is, by his station, raised above the apprehension of danger from 
a prosecution carried on in the ordinary course of justice. 
To which some writers have added another Aground; where 
the delinquency is not punishable according to the law, as 
administered in the inferior Courts. It would, indeed, have 
been a mockery of a judicial proceeding, to have directed a 
Jury to decide upon a misdemeanor in office, depending upon 
the propriety of the Partition Treaty, or that of Utrecht ; or 
to determine what was a libel on the Revolution: and the 
united accusation of the Commons of England, by their re- 
presentatives in Parliament, will appear necessary for dragging 
to justice such powerful favorites of royalty as Buckingham, 
Strafford, and Danby ; or persons of such exalted station as 
Lord Bacon and Lord Macclesfield. In all which cases, the 
offences and the offender were within the jurisdiction of the 
ordinary Courts, yet the trial of them by the common method 
of a Jury could never be satisfactory to the public. But to 
determine an offence to be treason, because the party is im- 
peached, which is not a treason declared in the Statute of 
Edward III; or to pronounce that to be a misdemeanor, 

which 



121 

which no Judge sitting in Westminster Hall would allow to 
be one, is surely incompatible with the security which every 
individual is entitled to enjoy, so long as he transgresses no 
established law. Locke, in his Treatise on Government, 
has appropriated a chapter for the purpose of explaining the 
limits of that trust, which the people confides to the legislative 
authority of a Country. He says, that it cannot assume to 
itself a power to rule by extemporary arbitrary decrees; but 
is bound to dispense justice, and to decide the rights of the 
subject, by promulgated standing laws. The national trust 
has been too frequently abused, by new designations of crime 
invented by the instigators of those judicial proceedings, in which 
the two Houses of Parliament have concurred : but if a similar 
course were ever again to be pursued, it is to be hoped that 
ourselves and our posterity will evince, by a temperate but in- 
flexible resistance, the truth of the opinion which the great 
Lord Bacon formed of the English people, that they continue 
to have deeply engraven in their hearts the sentiment, 
" Nolumus leges Angliae mutari." — In the application of this 
transcendent remedy for the evils occasioned by flagrant miscon- 
duct in the State, it will always be recollected that the hardships 
which the mode of trial by impeachment imposes on the in- 
dividual accused, are numerous and severe. Not to dwell 
upon the advantages which are allowed to the conductors 
of the prosecution, by the course of proceedings, greater 
than those which are permitted in ordinary cases; it is no 
trivial deprivation, if the prisoner be a commoner, to be 
obliged to relinquish his right of challenge, and to await the 
issue of a trial in which his Judges are not his Peers. Nei- 
ther ought it to be forgotten that the proceeding by impeachment 
was formerly, in some cases, imperatively called for, where the 
necessity of it, would not, in the present day, be thought so 
indispensable, from the independent character which Judges 
have assumed since the alteration of their patents : unless, 
indeed, the practice of raising Judges to higher stations upon 
the Bench, be considered as affording to the Crown a means 
of influencing their minds almost as objectionable as the ancient 
power of displacing them. The history of impeachments in 
this Country, and the principles of human nature, may likewise 
induce an opinion, that in judicial matters, a numerous assembly, 
of which many of the members are closely connected by domestic 
or political ties, is a tribunal very incompetent for the formation 
of an unbiassed and dispassionate judgment. 

When the same reasons exist for the interference of Parliament, 
as would justify the proceeding by impeachment ; but the ac- 
cused flies from justice, and does not surrender himself by a 
time appointed ; or is in actual rebellion, and in direct opposition 
to all methods of trial, and in defiance of every tribunal of law, 

Bills 



122 

Bills of Attainder or of Pains and Penalties, have been not unfre- 
quently resorted to. On the first ground, the Bill which passed 
against Lord Clarendon, and that which was preparing against 
Lord Danby during his concealment, have been defended. On 
the latter principle, the attainders of Monmouth and of the Preten- 
der, may be justified. Several cases will be found in Mr. Hat- 
sell's collections, where the extraordinary emergence of the 
occasion, or other public considerations may be thought to 
point out the proceeding by Bill, as a preferable course to that 
of a prosecution by the Commons. But where the remedy by 
impeachment is available, Bills of Attainder and of Pains and 
Penalties, will be regarded with jealousy, on account of the 
dangerous licence which the Houses of Parliament have per- 
mitted to themselves, from the mixed and indefinite nature of 
their legislative and judicial capacities when united. The cases 
of Lord Strafford and Sir J. Fenwick, deserve particular attention, 
because these precedents have been defended by arguments replete 
with constitutional learning and ingenuity of talent : but the im- 
partial reader, after a mature reflection upon them, will probably 
conclude by expressing his reprobation of the principles on 
which they proceeded; subversive as they are of all settled 
notions respecting the nature of offences, and of the evidence 
by which criminal charges ought to be established, The protest 
of the Lords, upon the occasion of the Bill for inflicting penalties 
upon Bishop Atterbury, will be read for the valuable opinions 
it contains upon this branch of Constitutional Law : a subject of 
paramount importance, in the opinion of every person who as- 
sents to the observation of Sir E. Coke, that it is the first duty 
of Parliament, to set an example of justice to inferior Courts. 



123 



CHAR XXXIII. 



Prince. I am convinced that the Laws of Eng- 
land eminently excel, beyond the laws of all other 
countries, in the case you have been now endeavour- 
ing; to explain ; and yet I have heard that some 
of my ancestors, kings of England, have been so far 
from being pleased with those laws, that they have 
been industrious to introduce, and make the Civil 
Laws a part of the Constitution, in prejudice of the 
Common Law; this makes me wonder what they 
could intend by such behaviour a . 

a Selden, in his Dissertation upon Fleta, asks, what Kings 
of England ever desired to introduce the laws of Rome into 
this Country ; and he mentions, as evincing a contrary disposi- 
tion in our Sovereigns, the edict of Stephen against the laws of 
Italy, and a protestation in the Parliament of the 11th 
Richard II, by the King and Lords, that the Imperial Laws 
had no force in England: Coke, on the other hand, enlarges 
on the attempts to bring in the Civil Law, in the reign of 
Henry VI. (3 Inst. 35.) The subject is particularly considered 
in Hurd's Dialogues upon the Constitution, and in Sullivan's 
Lectures. These writers mention the protection afforded to the 
Civil Law by Edward I, who brought over to England the 
celebrated Accursius, and established him in a school at Oxford. 
They advert to the open patronage of the Civil Law, and the 
profession of its principles by Richard II. And they notice 
the institution of professorships of Civil Law in the Universities, 
and the observation of it, in the proceedings of those Courts 
which were immediately under the King's influence, as indicative 
of the sense, not of this or that King, but of a whole succession 
of Princes. At a later period, it was one of the articles prepared 
against Cardinal Wolsey, that he endeavoured to subvert, " Anti- 
quissimas leges hujus regni, universumque hoc regnum legibus 
Imperialibus subjicere." Laud obtained of Charles I, that the 

Masters 



124 

Masters of the Requests should be all Doctors of the Civil Law^ 
and also eight Masters of Chancery. {Straff. Lett, and Disp. 
Vol. I. p. 176- Clarendon's History, lib. iv.) A policy which is ex- 
plained by the complaints which Strafford used to indulge against 
the common lawyers, that they monopolized all to be governed 
by their year books ; and that they were in the habit of hanging 
their noses over the flowers of the Crown, and of blowing and 
snuffling upon them, till they had taken both scent and beauty 
off them. (Strafford's Lett, and Disp. Vol. I. p. 130, 201.) The 
known partiality of King James for the professors of the Civil 
Law, is supposed to have been the cause of his extraordinary 
admiration of the play of Ignoramus, composed in ridicule of the 
practice of the Common Law. (The Case and Argument against 
Sir Ignoramus, by Callis ; and see the References in Hawkins's 
Ignoramus.) 



125 



CHAP. XXXIV. 



Chancellor. You would cease to wonder, my 
Prince, if you would please seriously to consider 
the nature and occasion of the attempt. I have 
already given you to understand that there is a very 
noted sentence, a favourite maxim, or rule in the 
Civil Law, that, That which pleases the Prince 
has the effect of a Law*. The Laws of England 

a " Quod Principi placet, legis habet vigorem." The entire 
passage as translated from the Institutes of Justinian by Gibbon, 
is this : " The pleasure of the Emperor has the vigor and effect 
of the law, since the Roman people, by the Royal Law, have 
transferred to the Prince the full extent of their own power 
and sovereignty." A fragment in copper of the Lex Regia which 
was passed by the Roman people in favor of Vespasian has been 
preserved ; but there cannot be collected from it any expressions 
to warrant the law in the extraordinary terms in which it is stated 
in the Institute. (Gruter's Inscriptions.) The passage in the text is 
attributed, in the compilation of Justinian, to the lawyer Ulpian. 
But the avowal which has been made, by the persons engaged 
in the formation of that great work, destroys the credit to be 
attached to the authorities they cite. " Nomina quidem veteribus 
servavimus, legum autem veritatem nostram fecimus : Itaque si 
quid erat in illis seditiosum, multa autem talia erant ibi reposita, 
hoc decisum est et definitum." The manner in which the pas- 
sage from the Roman Law in the text is cited and explained 
by our ancient writers, Bracton, Fleta and Thornton, is the most 
singular circumstance contained in their works. They have had 
recourse to an absolute forgery upon the Institutes of Justinian, 
for the purpose of giving an interpretation to it consistent with 
the existence of rational liberty. Selden expresses himself over- 
whelmed with astonishment at the method in which they have 
avoided its obvious import, at the same time treating it as a part 
of the Law of England. (Diss, ad Fletunt. Hurd's Dialogues on 
the Constitution.) It is to be observed, that some of the most 
distinguished Commentators of the Civil Law have considered, 
that the terms of the Lex Regia did not confer an absolute 

authority 



126 

admit of no such maxim, or any thing like it. A 
King of Englaud does not bear such a sway over 
his subjects, as a King merely, but in a mixed political 
capacity : he is obliged by his Coronation Oath b to 

authority on the Prince. (Heineccius's Antiq. lib. i. Tit. 2. 
c. 66. Duck de ortu et progressu juris civilis, lib. i. c. 3. — Hal- 
ifax's Introduction to his Analysis. Taylor's Civil Law, p. 140.) 
But that the jealousy entertained of this law by Fortescue 
was well founded, is confirmed by some particulars which 
Lord Lyttleton relates in his History of Henry II, respect- 
ing a controversy on the construction to be given to the 
passage in the text, which occurred in the dominions of the 
Emperor Frederick Barbarossa : and which terminated in a de- 
claration, that to entertain doubts of the Roman Emperor being 
the absolute master of the whole world and of all the goods of 
individuals, so that he might dispose of them at his pleasure, 
was a heresy. 

b An Oath has been required from the Sovereigns of this Country, 
at their Coronation, from the earliest times to which our histori- 
cal information extends. The form of the Coronation Oath ad- 
ministered to a Saxon King is perserved. (Hickes's Institutiones 
Grammatical Anglosaxonicce.) The Conqueror appears to have 
taken oaths on two several occasions, obliging him to maintain 
the ancient laws of the Country. (Hoveden Pars Prior, p. 258. 
Malmesb. de Quest. Pontif p. 154 b. Mat. Paris in vita Freth. 
Abhatis, fol. 48 ; and see for the more ancient Oaths, Mirror of 
Justices, c. 1. Sect. 2. Bracton, lib. iii. c. Q. The Oath in Br acton 
implies an Obligation not wantonly to molest Foreign Nations, Barr. 
on 2 Edw. III. n.) King Henry VIII, corrected the Coronation 
Oath with his own hand. (Book qf Oaths, a.d. 16890 ^ n tne 
time of Charles I, a serious charge was made against the King 
and Laud for altering the Oath by striking out the words " quas 
vulgus elegerit," and inserting these " agreeable to the King's 
prerogative." (Heylin's Cyprianus Anglicus, p. 141. et seq. Milton's 
Iconoclastes, §. 6. Defensio Pro. Pop. Angl. c. 8. Prynne's Can- 
terbury's Doom, p. 69, Whitelock's Mem. 84 b. Brog. Brit. Art. 
Laud. And see the arguments collected, Harris's Life of Charles I, 
p. 198, n.) A similar accusation has been brought against 
James II. (Sir R. Atkyns's Tracts, p. 413.) The Coronation 
Oath was changed at the Revolution, because, as the Statute 
alleges, it had been framed in doubtful words and expressions; 
with relation to ancient laws and constitutions at that time un- 
known. (St. 1 W. and M. c. 6; and see Debate on Coronation 
Oath, Vol. V. Pari. Hist.) — Some very important questions have 
arisen respecting the interpretation of several passages in the 
Coronation Oath. As, in the time of Charles I, whether the 
King was bound to give his assent to whatever laws the Par- 
liament 



127 

the observance of the laws, which some of our kings 
have not been well able to digest, because thereby 
they are deprived of that free exercise of dominion 

liament had previously agreed on : a discussion which embraced 
the constitutional topic of the independency of the respective 
branches of the Legislature. (Clarendon's History, Book V, 
p. 452, 483. May, p. 128. Oldcastle's Remarks, Letter 7- Burke's 
Thoughts on the present Discontents. Debates, Tern. Will. III. 
respecting the Exercise (if the Veto. Pari. Hist. Vol. V.) Another 
point respecting the construction of the Coronation Oath was 
canvassed in the reign of the same King ; whether the Sovereign 
was bound by the terms of his Oath to resist any change in the 
established religion, although sanctioned by the national consent, 
and approved of by his own judgment. (2 Neale's History of the 
Puritans, p. 229, *t se q- the Argument between Charles I, and 
Henderson upon the Subject.) A difficulty was felt by William III, 
upon the same ground, who conceived that the language of the 
Oath, in the terms in which it was framed, was inconsistent 
with his views of religious toleration. In the present day 
it has been contended, that a King of England would be 
prohibited by his Coronation Oath, from giving an ear to the 
claims of the Roman Catholics, although his own conviction 
and the voice of the nation, conspired to advocate them. — Such 
scruples seem to indicate in the minds of the persons enter- 
taining them the most derogatory conceptions of the Divine 
Attributes: but a king, who honestly felt himself under the 
influence of these bigotted impressions, would be solicitous to 
abdicate his throne, rather than they should stand an impediment 
to the completion of the vows of his people. — Foster, in his 
discourse upon High Treason, censures the expressions of some 
writers of eminence, who have spoken of the ceremony of 
Coronation as a bare notification of the descent of the Crown. 
(Foster, p. 189. 3 Inst. 7- 1 Hale, P. C. 61. 101.) In ancient 
times it was considered a solemnity of great importance : Not 
to dwell upon the extraordinary proceedings against Thorpe 
in the reign of Edward III, who was condemned to be hanged 
because he was found " Sacramentum Domini Regis fregisse ;" 
(3 Inst. 223.) Several facts are collected by Mr. Hallam from 
early English History, tending to shew that the ceremony 
of the Coronation gave a right, as it were, by seisin, to the 
throne. The taking of the Coronation Oath does, in a slight 
degree, countenance the hypothesis of an original compact. 
(See this Subject considered in Mr. Bentham's Fragment on Go- 
vernment, p. 42. et.seq. For the Forms of the Coronation Oaths at 
different Periods, Matt. Paris, p. 153. Rapin, Edw. II. Rich. II. 
Report of the Lords' Committees respecting the Peerage, p. 230. 
Prynne's Signal Loyalty. 1 Bl. Comm. p. 235 n. The Book 
of Oaths, published a. d. 1689- Strutt's Antiq. Vol. II. p. 55. 
et seq.) 



128 

over their subjects, in that full extensive manner, as 
those kings have, who preside and govern by an 
absolute regal power; who, in pursuance of the 
laws of their respective kingdoms, in particular, the 
Civil Law, and of the aforesaid maxim, govern their 
subjects, change laws, enact new ones, inflict punish- 
ments, and impose taxes, at their mere will and plea- 
sure, and determine suits at law in such manner, 
when, and as they think fit. For which reason 
your ancestors endeavoured to shake off this political 
frame of government, in order to exercise the same 
absolute regal dominion too over their subjects, or 
rather to be at their full swing to act as they list : 
not considering, that the power of both kings is 
really, and in effect equal, as is set forth in my 
aforesaid treatise, de Natura Legis Naturce, viz. 
that it is not a restraint, but rather a liberty to go- 
vern a people by the just regularity of a political 
government, or rather right reason ; that it is the 
greatest security both to king and people, and 
takes off no inconsiderable part of his royal care. 
That this may the better appear, you will please to 
consult the experience you have had of both kinds 
of government ; to begin with the regal, such as 
the king of France exercises at present over his 
subjects; and, in the next place, you will please 
to consider the effect of that regal political govern- 
ment which kings of England exercise over their 
subjects. 



129 



CHAP. XXXV. 



You may remember, most worthy Prince, in 
what a condition you observed the villages and 
towns of France to be, during- the time you sojourn- 
ed there. Though they were well supplied with 
all the fruits of the earth, yet they were so much 
oppressed by the king's troops, and their horses ; 
that you could scarce be accommodated, in your 
travels, not even in the great towns : where, as 
you were informed by the inhabitants, the soldiers, 
though quartered in the same village a month or 
two, yet they neither did nor would pay any thing 
for themselves or horses; and, what is still worse, 
the inhabitants of the villages and towns where 
they came, were forced to provide for them gratis, 
wines, flesh, and whatever else they had occasion 
for; and if they did not like what they found, the 
inhabitants were obliged to supply them with better 
from the neighbouring villages : upon any non- 
compliance, the soldiers treated them at such a 
barbarous rate, that they were quickly necessitated 
to gratify them. When provisions, fuel and horse 
meat fell short in one village, they marched away 
full speed to the next; wasting it in like manner. 
They usurp and claim the same privilege and custom 
not to pay a penny for necessaries, either for them- 
selves or women (whom they always carry with 
them in great numbers) such as shoes, stockings, 
and other wearing apparel, even to the smallest 
trifle of a lace, or point ; all the inhabitants, where- 

I 



130 

ever the soldiers quarter, are liable to this cruel 
oppressive treatment: it is the same throughout 
all the villages and towns in the kingdom, which 
are not walled. There is not any the least village, 
but what is exposed to the calamity, and once or 
twice in the year is sure to be plundered in this 
vexatious manner. Further, the king of France 
does not permit any one to use salt, but what is 
bought of himself, at his own arbitrary price : and, 
if any poor person would rather choose to eat his 
meat without salt, than to buy it at such an ex- 
orbitant dear rate ; he is notwithstanding com- 
pellable to provide himself with salt, upon the 
terms aforesaid, proportionably to what shall be 
adjudged sufficient to subsist the number of persons 
he has in family : besides all this, the inhabitants 
of France give every year to their king the fourth 
part of all their wines, the growth of that year, 
every vintner gives the fourth penny of what he 
makes of his wines by sale. And all the towns and 
boroughs pay to the king yearly, great sums of 
money, which are assessed upon them for the 
expences of his men at arms. So that the king's 
troops which are always considerable, are subsisted 
and paid yearly by those common people, who live 
in the villages, boroughs and cities. Another griev- 
ance is, every village constantly finds and maintains 
two cross-bow-men at the least ; some find more 
well arrayed in all their accoutrements, to serve 
the king in his wars, as often as he pleaseth to 
call them out ; which is frequently done. Without 
any consideration had of these things, other very 
heavy taxes are assessed yearly upon every village 
within the kingdom for the king's service; neither 
is there ever any intermission or abatement of taxes. 
Exposed to these and other calamities, the peasants 
Jive in great hardship and misery. Their constant 
drink is water, neither do they taste, throughout the 
year, any other liquor ; unless upon some extraordi- 



131 

nary times, or festival days. Their clothing- con- 
sists of frocks, or little short jerkins made of canvass 
no better than common sackcloth ; they do not wear 
any woollens, except of the coarsest sort ; and that 
only in the garment under their frocks ; nor do they 
wear any trowse, but from the knees upward ; their 
leg's being exposed and naked. The women go 
barefoot, except on holidays: they do not eat flesh, 
unless it be the fat of bacon, and that in very small 
quantities, with which they make a soup : of other 
sorts, either boiled or roasted, they do not so much 
as taste, unless it be of the inwards and offals of 
sheep and bullocks, and the like, which are killed 
for the use of the better sort of people, and the 
merchants : for whom also quails, partridges, hares, 
and the like, are reserved, upon pain of the gallies : 
as for their poultry, the soldiers consume them, 
so that scarce the eggs, slight as they are, are in- 
dulged them by way of a dainty. And if it happen 
that a man is observed to thrive in the world, and 
become rich, he is presently assessed to the king's 
tax, proportionably more than his poorer neighbours, 
whereby he is soon reduced to a level with the rest. 
This, or I am very much mistaken, is the present 
state and condition of the peasantry of France. The 
nobility and gentry are not so much burthened with 
taxes. But if any one of them be impeached for 
a state-crime, though by his known enemy, it is not 
usual to convene him before the ordinary judge, 
but he is very often examined in the king's own apart- 
ment, or some such private place ; sometimes only by 
the king's pursuivants and messengers : as soon as 
the king, upon such information, shall adjudge him 
to be guilty, he is never more heard of; but 
immediately, without any other formal process, the 
person so accused and adjudged guilty is put into 
a sack, and by night thrown into the river by the 
officers of the provost-marshal, and there drowned : 
in which summary way, you have heard of more 

l 2 



132 

put to death, than by any legal process. But still 
according to the Civil Law, " what pleases the 
prince has the effect of a law." Other things of 
a like irregular nature, or even worse, are well 
known to you, during your abode in France, and 
the adjacent countries ; acted in the most detest- 
able barbarous manner, under no colour or pretext 
of law than what I have already declared. To be 
particular would draw out our discourse into too 
great a length. Now it remains to consider what 
effect that political mixed government, which prevails 
in England, has, which some of your progenitors 
have endeavoured to abrogate, and instead thereof 
to introduce the Civil Law; that, from the con- 
sideration of both, you may certainly determine 
with yourself which is the more eligible, since (as 
is above-mentioned) the philosopher says, " that 
opposites laid one by the other, do more certainly 
appear," or, as more to our present argument, 
"happinesses by their contraries are best illustrated 3 ." 

a The text will not fail to recall to the reader's recollection, 
the remarkable speech of Sir Dudley Carleton, which incensed 
the House of Commons, in the reign of Charles I. " That in 
other countries, particularly in France, they had formerly 
parliaments, as we have; but when their parliamentary liberty 
was turned into tumultuary licence, and their kings found how 
these councils endeavoured to curb them; they took away 
and abolished those parliaments; and now the common people 
wanting good food, looked more like ghosts than men, and went 
in canvass clothes, and wooden shoes:" similar descriptions of 
the tyrannical nature of the ancient government of France, are 
to be met with in many of the early writers of this Country, 
and in the speeches in Parliament. {Sir T. More, Preface to the 
Utopia "stipendariisin pacequoque,si pax istaest, oppletaatqueobsessa 
militibus." Aylmer's Harborowe for faithful Subjects, the Marginal 
Reference, " How the French Pezantes be handled." "Amongst other 
grievances, they pay till their bones rattle in their skin." Haywurd's 
Life of Hen. IV. p. 250. IT Ewes, p. 169. Had. Misc. Vol. V. 
p. 252.) These accounts are important, with reference to the 
question upon which Mr. Hume and Mr. Brodie are at issue, 
the comparative liberty enjoyed by England, and the other 
nations of Europe, antecedently to the reign of the Stuarts. 
The description given of France by Fortescue, is confirmed and 



133 

illustrated by the writings of the contemporary historian Comines. 
Louis XI, who was then king, is said to have delivered the Crown 
of France out of wardship. Voltaire observes, that he was the first 
absolute monarch in Europe, after the decline of the House of 
Charlemagne : the feudal government had been destroyed about 
the time, when his predecessor Charles VII. established his 
power, by the expulsion of the English, the re-union of several 
important provinces to the Crown, and the establishment of 
perpetual taxes. It is certain, that the example afforded by the 
arbitrary government of France, and particularly the gabelle 
of salt, has been cited with a view to sanction, by such a pre- 
cedent, the adoption of similar courses in this Country. (Strafford's 
Lett, and Disp. Vol. I. p. 93, 193. Sir H. Wooton's Speech. Debates 
on Impositions. Tern. Jac. I.) Whilst the blessings of the English 
Constitution, as manifested in the prosperity of the people, 
have been the theme of admiration abroad, not only in the 
present day, but so early as the reign of Henry VI. {Comines, 
lib. v. c 1. lib. v. c 18.) 



134 



CHAP. XXXVI. 



In England no one takes up his abode in another 
man's house, without leave of the owner first had* : 
unless it be in public inns h ; and there he is obliged 
to discharge his reckoning, and make full satisfaction, 
for what accommodations he has had, ere he be per- 
mitted to depart. Neither is it lawful to take away 
another man's goods without the consent of the 
proprietor, or being liable to be called to an account 
for it. No man is concluded, but that he may pro- 
vide himself with salt, and other necessaries for his 
family, when, how and where he pleases. Indeed 
the king, by his purveyors*, may take for his own 

a The summary proceeding in case of forcible entries which 
had been appointed by a Statute of Richard II, -was enlarged 
and rendered more effectual in the reign of Henry VI. The 
Paston Letters, written at this period, shew the manner in which 
private houses were sometimes fortified to oppose attacks, and 
the alarming nature of the aggressions made upon the dwell- 
ings and property of individuals. (Paston Letters, Vol. III. 
Letter 77- Vol. IV, Letters 58, 75, 93, 9*, 95, 96, 97, 100, 
103, 104, 106. Vol. V, Letters 65, 167-) 

b In the time of Henry VI, it seems not to have been a 
settled point, whether an action might be maintained against an 
innkeeper for refusing a lodging ; and it appears to have been 
the better opinion, that the proper remedy was to complain 
to the ruler of the vill, or the constables of the place. (Year 
Book, 39 Hen. VI, p. 18. 5 Edw. IV, p. 2.) 

c Burke, in his speech upon economical reform, has given 
a lively description of the ancient practice of purveyance. 
And a variety of interesting particulars respecting it are col- 
lected in the Archaeologia of the Antiquarian Society. (Archa'ol. 
Antiq. Soc. Vol. VIII ; and see Barrington on 28 Edw. I, 

10 Edw. 



135 

use necessaries for his household, at a reasonable 
price, to be assessed at the discretion of the con- 
stables of the place, whether the owners will or not : 
but the king is obliged by the laws to make present 
payment, or at a day to be fixed by the great officers 
of the king's household. The king cannot despoil 
the subject, without making ample satisfaction for 

10 Edw. Ill, 36 Edw. III. Ellis's Original Letters, Vol. I, 
p. 239. On the Impressment of Artificers, Hallam's Middle Ages, 
Vol. II, p. 358. Of Choristers, Jehu Webb's Case, 8 Rep.) The 
abuses to which the system of purveyance gave rise in this 
Country are eloquently set forth by Lord Bacon, in deliver- 
ing an address, presented to King James from the House 
of Commons. He says, that there was no grievance in 
the kingdom so general, so continual, so sensible, so bitter 
upon the common subject, as that. (Bacon's fVorks, Vol. II, 
p. 150; and see respecting the Exercise of the Prerogative of 
Purveyance, by the Tudors, Hume, NoteEE to Vol.VI.Brodie's 
British Empire, Vol. I, p. 297.) The restraining of the excesses 
of the purveyors, was a subject that much engaged the attention 
of the Legislature in former times. Coke mentions, that no less 
than forty-eight Statutes have been passed relative to this prac- 
tice. (2 Inst. 224, 33, 35, 54/6, what is said concerning the Book 
entitled " Speculum Regis," written against Purveyors, Tern. 
Edw. III. 3 Inst. c. 24, on Felony in Purveyors. 4 Inst. c. 29, 
the Court of Purveyors. St. 36 Edw. III. that the odious Name 
of Purveyor should be changed to that of Achator. Stat. 1 Henry VI, 
c. 2. for Proclaiming the haws of Purveyance Four Times a Year.) 
Coke relates, that one of Queen Elizabeth's purveyors was hang- 
ed for offending against these laws: and some arbitrary pro- 
ceedings respecting purveyance, form the substance of one of the 
charges preferred against Wolsey. The difficulty of procuring 
provisions, arising from the want of regular and well supplied 
markets, was often productive of serious inconveniences: The 
collection of Letters recently published by Mr. Ellis, contains 
some curious facts in illustration of this: provisions are men- 
tioned to have been sent for to Flanders, in consequence of 
their having been bought up at home, in expectation of a royal 
progress. {Ellis's Original Letters, Vol. II. p. 271 •) Before 
the extinction of the practice of purveyance, compositions in 
lieu of it had been stipulated for by most of the Counties. 
Many arguments are urged against the policy of abolishing it, 
which, in the present day, will afford amusement to the reader, 
in a book written by Fabian Phillipps, entitled " The An- 
tiquity, Legality, Reason, Duty, and Necessity of Purveyance 
and Pre-emption." 



136 

the same d : He cannot by himself, or his ministry, 
lay taxes, subsidies, or any imposition, of what kind 
soever, upon the subject e ; he cannot alter the laws, 
or make new ones, without the express consent of 
the whole kingdom in Parliament assembled : every in- 
habitant is at his liberty fully to use and enjoy what- 
ever his farm produceth, the fruits of the earth, the 
increase of his flock, and the like : all the improve- 
ments he makes, whether by his own proper industry, 
or of those he retains in his service, are his own to 
use and enjoy without the lett, interruption, or denial 
of any: if he be in any wise injured, or oppressed, 
he shall have his amends and satisfaction against the 
party offending-: hence it is, that the inhabitants 

d Sir E. Coke, in that part of his Institutes in which he 
treats of the Courts of the Forests, says, that no King of England 
could legally have raised a free chase, park, or warren, in any 
of the grounds of his subjects ; and in confirmation of this he 
mentions a remarkable indenture made between Henry VIII, 
and certain freeholders and copyholders, for the purpose of 
enabling him to create Hampton Court Chase, and yet, as 
Coke observes, Henry VIII. did stand as much upon his 
prerogative as any King of England ever did. (4 List. 301.) 
Agreeable to the same opinion is the certificate of Popham, 
Chief Justice, and all the Justices of England, respecting the 
prerogative of the King in digging for saltpetre. (3 Inst. 84.) 
Lord J. Russell has related two remarkable instances, in which 
poor men, with law on their side, overcame the pretensions of 
a Princess of the Blood, and of the Heir Apparent to the Throne. 
(Treatise on the Constitution, Append, and see Lord Chatham's 
Speech on General Warrants, a. d. 1764.) The resistance of 
Hampden, a private gentleman, to an imposition of twenty 
shillings, has rendered the tax of ship-money, " a name of lasting 
sound in the history of this Country." 

c It appears from Fortescue's Book on " Absolute and Lim- 
ited Monarchy," that in the time of Edward IV, the revenue 
of the Crown, exclusive of parliamentary supplies, was equal 
to a fifth of the lay property of the kingdom. Respecting the 
ancient revenues of our Kings, see a Tract by Sir R. Cotton 
upon the subject: and the second Book of Lyttleton's Henry II, 
with the Notes : also the voluminous collections of Madox in his 
Treatise on the Exchequer. Fortescue does not state that our 
Kings were restricted from aliening their revenue : Lord Holt, 
in his argument on the Bankers' Case, draws an inference from 
this circumstance in support of Royal Grants. 



137 

are rich in gold, silver, and in all the necessaries 
and conveniences of life. They drink no water, 
unless at certain times, upon a religious score, and 
by way of doing penance. They are fed, in great 
abundance, with all sorts of flesh and fish, of which 
they have plenty everywhere ; they are clothed 
throughout in good woollens; their bedding and 
other furniture in their houses are of wool, and 
that in great store : they are also well provided 
with all other sorts of household goods and necessary 
implements for husbandry : every one, according 
to his rank, hath all things which conduce to make 
life easy and happy f . They are not sued at law 

f In a passage of Hollingshead, in the discourse prefixed to 
his History, and which some ascribe to Harrison, speaking of 
the increase of luxury, it is said, that old men have remarked 
three things marvelously altered in England within their re- 
membrance ; first, in the multitude of chimneys ; secondly, the 
amendment of lodging ; thirdly, the exchange of wooden platters 
into pewter, and wooden spoons into silver or tin. The greater 
part of the buildings in the towns of England are mentioned 
by the same writer to consist only of timber, cast over with 
clay, commonly of a white, red, or blue color : the houses of 
the nobility, which were newly erected, were usually of brick 
or stone: and glass windows were beginning to be used in 
England. The subject in the text derives considerable illustra- 
tion from the interesting poem entitled, Pierce Ploughman's 
Vision, written in the reign of Edward III. (See particularly 
Pierce Ploughman's Address to Hunger. And further as to the 
Domestic Economy of the English People, in Early Times, Henry, 
Vol. V. c. 7- Hallam, Vol. II. c. 9. Strut t's Antiquities. Past on 
Letters, Passim. Ellis's Specimens of the early English Poets, c. 13. 
"On the Private Life of the English in the Reign of Hen. VI.") 
Mr. Brodie has endeavoured to account for the decay of the 
ancient provincial towns in England, from the diminution of 
the numbers of small farmers and agriculturalists, by reason 
of the system of inclosures ; by the demands of which descrip- 
tion of persons he supposes the manufacturers in the pro- 
vincial towns to have been principally supported: it appears, 
however, that till a late period, the common people were much 
in the habit of manufacturing their own clothes. (Brodie's 
Introduction, p. 36. Eden on the Poor, Vol. I, p. 109, 121.) It 
was not till the middle of the seventeenth century, that cottons 
were manufactured in this Country, though silks had been 

introduced 



138 

but before the ordinary judge, where they are 
treated with mercy and justice, according to the 
laws of the land; neither are they impleaded in 
point of property, or arraigned for any capital 
crime, how heinous soever, but before the king's 
judges, and according to the laws of the land. 
These are the advantages consequent from that po- 
litical mixed government which obtains in England: 
from hence it is plain, what the effects of that law 
are in practice, which some of your ancestors, kings 
of England, have endeavoured to abrogate : the 
effects of that other law are no less apparent, which 
they so zealously endeavoured to introduce among 
us; so that you may easily distinguish them by 
their comparative advantages ; what then could in- 
duce those kings to endeavour such an alteration, 
but only ambition, luxury, and impotent passion, 
which they preferred to the good of the State. You 

introduced in the reign of Henry II, and furs were in common 
use in the time of Edward I. (Strutt's Antiq. Vol. II, p. 83. 
3 Inst. 199. On the Use of Furs, Barrington on 10 Edw. III. 
On the Laws against the Waste of Gold and Silver in Em- 
broidery, Henry, Vol. V, p. 456; and upon Ancient Dresses in 
England, see Peck's " Desiderata Curiosa.") With respect to the 
agricultural instruments mentioned in the text : The Norman 
plough, without wheels, the handle of which was held in one 
hand, whilst the other directed a plough-staff to break the clods, 
continued in use till the seventeenth century : the harrow was 
known to the Normans, as appears from the Bayeux tapestry. 
(Strutt's Antiq. Vol. II. p. 12.) Salt is particularly mentioned 
by Fortescue in this Chapter: a circumstance which conveys 
information both in respect of the manurance of the soil, 
and the food of the inhabitants. The first pits of fossil or 
rock salt known in this Country, were accidentally discovered 
in Cheshire, so late as a. d. 1670, at the very spot where 
Domesday records some brine-springs. Henry VI. invited 
over some manufacturers of salt from Zealand. The monopoly 
of this article was one of those which Elizabeth recalled: in 
announcing which circumstance to the Parliament, Sir R. Cecil 
thus quaintly expressed himself, " That you may eat your meat 
more savory than you have done, every man shall have salt 
as good and cheap as he can buy it, or make it freely, without 
danger of that patent which shall be presently revoked." 
(Townsend's Journak, p. 150.) 



139 

will please to consider in the next place, my good 
Prince, some other matters which will follow to be 
treated of g . 



s Sir E. Coke, in his Commentary on the Statute of Marie- 
bridge, says, the Judges are not Judges of Chambers, but of 
Courts ; neither are causes to be heard upon petitions or 
suggestions, but in curia Domini Regis. It is alleged against 
Empson and Dudley, that they used to convent men before 
themselves, at their private houses: (Bacon's Henry VII.) 
A similar accusation forms one of the articles against Finch, 
in his impeachment: Lord Falkland, who presented the 
charge to the House of Lords, imputed to him, that he brought 
all law from his Majesty's Courts into his Majesty's breast. 
(Pari. Hist. Vol. II.) The right of the subject to be tried 
by the ordinary tribunals, is asserted in very forcible language, 
by declarations of the Legislature, on the occasions of reversing 
the Attainders against the Earl of Kent, in the reign of 
Edward III, and against the Earl of Lancaster, in the reign of 
Edward IV, both of whom were executed according to Martial 
Law in the time of peace. (Hale's Hist, of the Common Law, 
p. 42. 3 Inst. p. 52.) Instances, however, are to be found of 
several flagrant violations of this privilege by some of our 
Sovereigns. (Case of the Earl of Kent, supra. The Proceed- 
ings against Gloucester at Nottingham Castle, in the presence of 
Richard II. The Execution of a Cutpurse, by order of James at 
Newark, Peyton's House of Stuart. And examine the Imputations 
on the Conduct of Charles I, in respect of his Treatment of the 
Earl of Loudon, 2 Brodie 515.) It has been thought, that by 
the twenty-ninth Chapter of Magna Charta, the King is pro- 
hibited from erecting any new criminal Court. (Sullivan's 
Lectures, p. 377.) and Sir E. Coke evinces a great jealousy 
of all new commissions, conferring powers of judicature, which 
are not sanctioned by Parliament. (3 Inst. 165, 4 Inst. 162.) 
There is an interesting case in his Reports, in which he tells 
us, that in conjunction with the rest of the Judges, he refused 
to sit upon the High Commission, in the time of James, 
notwithstanding the many endeavours, made by the Lord 
Treasurer to persuade him. The Judges of the land, have often 
interposed a salutary check to the proceedings of those Courts, 
which have been founded on principles incongruous with the Com- 
mon Law. (4 Inst. 332, 333. Strafford's Lett, and Disp. p. 130, 
155, 205, 173. Brodie' s Introduction, p. 199, 200. Whitelock's Memo- 
rials, p. 15.) But such institutions have too frequently been deem- 
ed a necessary support to arbitrary power ; until the discontent 
excited by them has spread so widely throughout the nation, as 
ultimately to effect the subversion of the Government, by which 

they 



140 

i 

they were upheld. (See Observations on the Star Chamber, and 
other Summary Tribunals, in the Minutes of Lord Somers' Speech 
on the Bill for Abolishing the Privy Council of Scotland, 
Hardrv. St. Papers, Vol. II. p. 473. On the Court at York, 
Rushrvorth, Vol. II. p. 158, Life of Clarendon, 4 Inst. c. 49- 
On the Court of the Marches, Bacon's Works, Vol. IV. Con- 
cerning Cromwell's High Court of Justice. The References 
in Grey's Hudibras, Part II. Canto 2. 1. 325, Harris's Life 
of Cromwell, p. 449> " Cromwell's New Slaughterhouse," Walker 
on Independency, Part III. On the Ecclesiastical Commission 
of James II, Clarke's Stuart Papers, Vol. II. p. 88. et seq. 
Lord Lonsdale's Memoirs, Sheffield, Duke of Buckingham' s Works, 
a Letter stating the Ground for his consenting to sit as a Member 
of the High Commission. Sir R. Atkyns's Tracts. Cases of Mag- 
dalene College, and Cambridge University, St. Tr.) 



141 



CHAP. XXXVII. 



Saint Thomas, in the book which he addresses 
to the king of Cyprus (de regimine principum) 
says, " that a king is given for the sake of the 
kingdom, and not a kingdom for the sake of the 
king." Consequently all kingly power ought to 
be aplied for, and to center in the good of the 
Kingdom or State: which, in effect, consists in 
the defence of the subject from the incursions of 
other nations, and in the protection of their lives 
and properties from injuries and violence as to 
one another. A king who cannot come up to this 
character, is to be looked upon as weak : but if, 
through his own passions, poverty, or want of 
economy, he be in so distressed a condition, that 
he cannot keep his hands off from seizing on his 
subjects' property ; by means whereof he so impo- 
verishes them, that their estates are not sufficient 
to maintain both : in how much a more impotent 
despicable condition may we justly reckon such 
a prince to be, than if he were barely unable to 
defend them against the injuries of others? Such 
a prince, indeed, is not only to be called weak, 
but weakness itself; and is far from being a proper 
head of a free people, whilst he labours under 
such pressures and obligations. On the other 
hand, he may well be esteemed a free and powerful 
prince, who can protect his subjects, against 
a foreign force as against one another : their pro- 
perties are safe with respect to their neighbours 



142 

and fellow-citizens, not liable to the oppression or 
depredation of any one : not even though the prince 
himself should have passions and occasions of his 
own to gratify: for who can be more powerful 
or free than that prince who cannot only bring 
others within due bounds, but can also get the better 
of his own passions? which that prince can, and 
always does, who governs his people in the political 
way. So that experience sufficiently shews you, 
my Prince, that those ancestors of yours, who were 
so much set upon abolishing the political form of 
government, had they been able to have compassed 
it, would not only have been disappointed of their 
aim and wish of enlarging their power thereby ; 
but would, by this means, have exposed both them- 
selves and the whole kingdom to far greater mischief 
and more eminent danger. Nevertheless, what we 
have shewn from the experience of the ill effects of 
a despotic government, which may seem to check 
and lessen the power of an absolute prince, do in 
reality rather proceed from a want of due care, and 
from misbehaviour, than from any defect in that law by 
which he governs. And therefore the regal power or 
dignity itself is not hereby lessened: since the power, 
whether of an absolute prince, or of one limited by 
laws (as I have evidently shewn in the aforesaid 
Treatise of the Law of Nature) is equal. But, that 
the power of an absolute prince is attended with 
much more difficulty in the exercise of it, and with 
less security both to king and people, the foregoing 
observations do, I think, sufficiently demonstrate. 
So that a wise prince would not wish to change the 
political form of government for an absolute: and 
for the same reason it is, that St. Thomas is supposed 
to wish, that all the kingdoms and nations of the 
world were governed in the political way 8 . 

a A very perverse use is made of some passages in this 
chapter by Sir John Davies, in his Treatise on Impositions. 

He 






143 

He observes, that the King of England, according to Fortescue, 
has equal power with other monarchs, and thence infers that 
he has a right to lay impositions on his subjects, in the same 
manner that they do. It was usual in the time of King James, 
to attempt to support the arbitrary measures of the Government, 
by arguments drawn from the prerogatives of foreign princes. 
In Sir W. Temple's Memoirs, is related a curious conversation, 
relative to the subject in the text, between King Charles the 
Second and Gonovelt ■ the French Ambassador, in which the 
latter gives it as his opinion, conformably to the sentiments of 
Fortescue, " that a King of England who will be the man of 
his people, is the greatest King in the world, but if he would 
be any thing more, he is nothing at all." 



144 



CHAP. XXXVIII. 



Prince. You will,, I hope, excuse it, my Chan- 
cellor, that while I have been proposing my doubts 
and queries, I have obliged you to digresss so far 
from the main point. What you have explained by 
the way, has been very instructive, though it may 
have a little taken you off from your principal design ; 
I now earnestly desire you, forthwith to proceed ; 
and, as you at first set out and promised me, that 
you would please to declare some other cases, in the 
decision whereof the Laws of England, and the 
Civil Law of Nations observe a different method 
of procedure. 






145 



CHAP. XXXIX 



Chancellor. Sir ! In obedience to your request. 
I will endeavour to lay before you some other eases, 
in which the laws aforesaid observe a different de- 
termination : which is preferable I will not take upon 
me to say, but shall leave it to your own judgment. 
"The Civil Law" legitimates children born be- 
fore matrimony, as well as after, and qualifies 
them to succeed in the inheritance of the parents." 
The Law of England does not admit children born 
before matrimony to take by heirship. It calls such 
an offspring natural, but not legitimate. In the 
case before us, the Civilians extol their law, be- 
cause they say, that it is an encouragement to 
marriage, by which the sin is done away, and so 
the souls of both parties are preserved from dam- 
nation. They allege further, that the presumption 
is, that such was the intention of the parties, as it 
were, by way of contract, at the time of committing 
the act; the subsequent marriage demonstrates as 
much. Moreover, the Church admits and allows 
them for legitimate : these, 1 think, are the chief 
arguments, by which they justify and defend the 
Civil Law. To this the learned in our Law reply, 
that the sin of concubinage, in the case proposed, 
is not purged by the subsequent marriage, though 
in some measure the punishment of the parties 
offending may be mitigated. They urge further, 
that the guilty in this case are the less penitent 
for their offence, in proportion as they find the 
laws more favourable to it, upon which considera- 

K 



146 

tion they likewise become more apt to repeated 
acts of this kind; and so act in contradiction both 
to the commands of God, and the* ordinances of 
the Church. So that this law not only shares in 
the guilt of the offender by abetting such a practice, 
but is quite beside the nature and definition of a 
good law, " which (as has been already observed) 
is an holy sanction commanding things which are 
honest, and forbidding the contrary." Now, the 
Civil Law. in the case before us, rather prompts on 
the party to do things which are dishonest. Nor 
is it a sufficient defence of this law, to say, that 
the Church admits such issue for legitimates. Since 
our holy mother the Church dispenses with many 
things which she does not allow of to be done. So 
the Apostle dissolved the restraint upon virgins, by 
way of dispensation; when, at the same time he ad- 
vised the; contrary, and would rather that all men 
were even as himself. And far be it that so good 
a mother should deny her compassion to her sons, 
whose case is so much the more deplorable, because 
they often fall into this sin, being betrayed by that 
encouragement which the Civil Law allows it : and 
the subsequent marriage is a good argument to the 
Church, of their being truly penitent for what is 
past, and of their resolution to contain for the future. 
The Law of England has a quite contrary effect ; 
It does not give any encouragement to such a cri- 
minal action, neither does it screen the offenders, but 
lays a restraint upon them, threatens and inflicts a 
punishment, that they may not offend. The incli- 
nation is predominant enough in itself, without any 
other incitements, it rather wants a curb, the pro- 
pensions to lust are very importunate and constant : 
and mankind, seeing they cannot be continued of 
and by themselves, naturally desire to be perpetuated 
in their species, which, without that, must be soon 
extinguished : every living creature has an inclination 
to be assimilated to the first cause, which is of a 



14? 

perpetual eternal duration : the sensation of contact, 
by which generation is effected, is a greater grati- 
fication than the sense of taste, which only preserves 
the individual. Wherefore Noah, by way of punish- 
ment to his son, who had discovered his father's 
nakedness, cursed Canaan his grandson, and there- 
by aggravated his son Ham's punishment more, than 
if he himself had been accursed : wherefore that law 
which punishes such an offspring, affects the sin 
with a severer penalty, than that which immediately 
affects the offender in his own person : now, 1 must 
leave it to you to judge, how truly and zealously the 
Law of England prosecutes a criminal amour. It 
is not content only to condemn the offspring to be 
illegitimate, but debars it from succeeding to the 
patrimony of the parents. Is not this a chaste law, 
a law of order, does it not more effectually discourage 
this sin, than the Civil Law, which remits the sin 
of fornication without exacting any punishment at 
all? 



K 2 



148 



CHAP. XL. 



Besides, the Civil Law says, that a natural son 
is the son of the people, concerning which a certain 
poet, 

Cui pater est populus, pater est sibi nullus et omnis, 
Cui pater est populus, non habet ipse patrem. 

"He who has the people for his father seems to have 
no father at all, or rather every one : he who has 
the people for his father, has in reality no proper 
father*." Since such an offspring, when born, had 
no father, how by any subsequent act he can have 
one, is not known in nature? A woman has by 
two several men two sons ; one of the said men 
intermarries with her ; which of the two sons is 
legitimated by such marriage? Opinion may prevail, 
but reason cannot decide; there was a time when 
both of them past in estimation for children of 
the people, or community ; when neither knew nor 
had any other father: wherefore, it would seem 
inconsistent and unreasonable, that a son born after- 
wards of the same mother in lawful wedlock, whose 
original is confessedly known, should be debarred 
of his inheritance ; and that either of the other two 
sons born out of marriage should take as heir: 
especially in England, where the eldest son, lawfully 
begotten, inherits to the lands : any indifferent 

" Haines v. Jeffreys, Comyns' Rep. p. 2. Case of the marriage 
of a bastard, within the Levitical degrees. 



149 

person would judge it no less unreasonable, if 
a base-born child should have an equal share in the 
inheritance with one who is lawfully begotten. 
And by the Civil Law, the inheritance is divided 
amongst the male issue. St. Austin, in his book 
(de civitate dei) has it, that Abraham gave all that 
" he had unto Isaac, but unto the sons of the 
concubines which Abraham had, Abraham gave 
gifts." His observation is, that thereby it seems 
to be intimated that the inheritance of right does 
not belong to a spurious issue, but only a competent 
living. Thus St. Austin; and under the term 
(spurious) he includes all such children as are 
illegitimate, or born out of wedlock ; as the holy 
Scriptures do likewise, which never give to any 
such the appellation of bastard. You see St. Austin, 
nay, and Abraham too, makes no small difference 
as to the succession of a spurious or legitimate off- 
spring. Further, another Scripture sets a mark 
of infamy upon all illegitimate children in the follow- 
ing metaphorical expressions ; 't the multiplying 
brood of the ungodly shall not thrive nor take deep 
rooting from bastard-slips, nor lay any fast founda- 
tion." The Church also does the same, by not 
admitting them into Holy Orders ; or, if it dispenses 
with them thus far ; yet, they are never permitted 
to enjoy any dignity or pre-eminence in the Church. 
It is but fit and reasonable therefore that human laws 
should deprive such persons of the privilege of 
succession : the Scriptures also, in point of birth, 
judge such inferior to those who are begotten in 
lawful marriage. Gideon, that mighty man of valour, 
is said to have had threescore and ten sons of 
his body begotten ; for he had many wives, and but 
one son by his concubine, and yet this one son slew 
all his brethren, except Jotham, the youngest, who 
hid himself. More wickedness is found to have 
been in that one bastard-slip, than in threescore and 
nine lawfully begotten. It is an old saying, If 



150 

a bastard be good, it is mostly by accident, or special 
grace ; if wicked, it is but his nature. An unlawful 
brood is thought to derive a corruption and stain 
from the transgression of the parent, without any 
concurrent fault of his own. So all of us have 
contracted a very great corruption from the sin of 
our first parents, though not of so opprobrious a 
nature : the blemish with which bastards are 
affected, is widely different from that of legitimate 
children. The mutual culpable lust of the parents 
affects their offspring, which does not give itself 
such a loose in the lawful chaste embraces of the 
matrimonial life. The sin of fornicators is mutual, 
and in common ; and as it bears a near resemblance 
therefore with the first sin, it leaves a worse impres- 
sion on the issue than that of any other sin which 
men commit in private without any accomplice. So 
that a child so born, may rather be called the off- 
spring of sin itself, than of the guilty persons. 
Wherefore the wisdom of Solomon, distinguishing 
between a spurious and a legitimate offspring, of 
the latter says, ft How beautiful is the offspring of 
the chaste and nuptial bed ? The memory of it is 
immortal, being acknowledged both by God and 
man." Whereas the other is not so much as 
acknowledged amongst men ; for which reason they 
are called the children of the people, or community : 
and of these the same book of Wisdom says, "chil- 
dren begotten of unlawful beds, are witnesses of 
wickedness against their parents in their trial." 
For being asked about their parents, they reveal 
their imperfections, as the wicked son of Noah did 
his father's nakedness. It is therefore thought that 
the man who was born blind, concerning whom the 
Pharisee said, *f Thou wast altogether born in sins," 
that he was a bastard, and so, in that sense, born in 
sin: and when they add immediately, "and dost 
thou teach us?" They seem to intimate as if a 
bastard were not qualified by nature, like the issue 



151 

of a lawful bed, either for knowledge, or for teaching- 
others. Therefore that law does not rightly deter- 
mine, which equals bastards with children lawfully 
begotten in the succession to the inheritance of their 
parents, when the Church judges them not duly 
qualified for Orders, or fit to preside in God's in- 
heritance. The Scriptures likewise put a wide 
distinction between them, as we have above observ- 
ed : And nature itself makes a difference in her 
gifts, by setting as it were a natural mark or 
blemish on the natural children, though secretly 
impressed upon the mind. Which now of those two 
laws, in the case before you, do you hold with and 
give the preference to? 



152 



CHAP. XLI 



Prince. Indeed I give the preference to that 
law which does most effectually cast out sin, and 
establish virtue. 1 am also of opinion, that such 
are least entitled to the benefit of human laws, 
whom the Law of God judges unworthy, and 
whom the Church excludes from her orders and 
dignities, as being by nature more prone to wick- 
edness. 

Chancellor. I think you judge in the case very 
rightly. I will now recollect some other cases, 
wherein the Civil and our Laws disagree 3 . 

* The provisions of the Civil Law, in favor of legitimation by 
a subsequent marriage, were enacted by Constantine and his 
successors. The principle on which they were introduced, is 
thus expressed in the Code : " Cum gratias agere fratribus suis 
posteriores debeant, quorum beneficio ipsi sunt justi filii, etnomen 
et ordinem consecuti." The import and effect of the rule cannot 
be understood, without regarding it in connection with the re- 
gulations of Justinian, respecting concubines. (Hienecc. Elem. 
Jur. Civ. Inst. 1. 10. §. 165. et seq. Taylor's Civil Law, p. 273; 
and see further respecting the Rule, Hargr. Co. Litt. 245 a. n. 1. 
Doctor and Student, Dial. i. c. 25.) It may not be thought 
uninteresting to advert to a few circumstances, which may 
serve to exhibit the sentiments of the people of this Country, 
upon the subject of bastardy at different periods. The British 
allowed bastards to inherit. (Hale's Common Law, p. 306.) 
The epithet Bastard was assumed by William the Conquerer, 
and was applied to him, by writers who were his encomiasts. 
(Appendix to the Second Report of the Commissioners for the 
Public Records, upon the Authenticity of the Charter of William, 
to the Earl of Britanny : where the Passages from the Ancient 
Authors are collected. Sir J. Hayward's History of the Norman 
Kings.) The privileges of the bastard Eigne, are in unison 

with 



153 

with the principles of the Civil Law. (See also the G round of the 
Decision Tern. Edw. Ill, cited in Sir M. Finch's Case, 6 Rep.) Selden 
observes, that notwithstanding the famous dissent of the Barons 
at the Parliament of Merton, to the proposal for adopting the 
rule of subsequent legitimation, the children of John a Gaunt, 
by his wife Catherine, before marriage, were in another reign 
made legitimate, by Act of Parliament. (Diss ad F let am. 
For a Commentary upon this Act, and for Coke's Remarks on the 
Title of Henri/ VII. to the Crown, 4 Inst. 36, 37. See also the 
Jet for the Legitimation of Sir R. Sadler's Children, Tern. 
Henry VIII. Petyt. Manuscript, Vol. VI. p. 336.) Blackstone 
has elucidated some obscure and extraordinary clauses in a 
sentence of excommunication, which was denounced with great 
solemnity, on the occasion of the republication of the Charters, 
a. d. 1253, by reference to the transactions of the Parliament of 
Merton, respecting special bastardy. (Blackstone on the Charters, 
p. 79- e t seq. Concerning Special Bastardy, as regarded by the 
Law of England, before the Statute of Merton, and the Clause 
in that Statute upon the Subject. Mirror, p. 10. G/anville, lib. vii. 
c. 13, 14, 15. 2 List. p. 96. et seq. Hurd's Dialogue on the 
Constitution.) Richard III, took great pains to propagate a be- 
lief of the bastardy of the children of Edward IV, and accordingly 
employed a preacher to deliver a sermon at Paul's Cross, upon 
one of the passages of Scripture, cited by Fortescue in the text, 
"bastard-slips shall never take deep roots." (See an Account 
of this Sermon. Sir T. More's Pitiful Life of Edward V.) The 
same King thought it politic to proclaim the bastard descent of 
Henry Tudor, in order to prejudice the Country against 
his pretensions to the Throne. (Letter to Sheriffs of Kent, 
Past on Letters, Vol. II.) The imputation of a spurious birth 
attached to Queen Mary and Queen Elizabeth ; and the different 
conduct of these two Sovereigns, in respect of this circumstance, 
after their accession, are matters of historical notoriety. But 
less attention has been given by writers to the measures adopted 
by king James and his predecessor, for establishing the illegiti- 
macy of the Suffolk family. (Much valuable Information on this 
Subject, is collected in Mr. Luder's Tract on the Succession.) 
Sheffield Duke of Buckingham, mentions a difficulty in which 
the delicacy of the Parliament of Queen Elizabeth involved 
them, when they were proceeding to pass an Act, establishing 
the title of her issue ; the usual language in her father's time, 
being "issue lawfully begotten." On debate the House con- 
sidered, that it would be more consistent with decorum, to alter 
the phrase to that of " natural born issue :" the circumstance, 
however, created a suspicion among the people, who apprehended 
that the Queen's great favourite Leicester, intended to set up 
for King some bastard of his own, after the death of Elizabeth, 
pretending that it was born of her, and bred up privately. 

(Duke 



154 

(Duke of Buckingham's Works " On Treasons.") James II, when 
Duke of York, always testified great jealousy at the omission 
of the word " natural," prefixed to the word " son," in warrants 
and commissions, directed to the Duke of Monmouth. (Clarke's 
Stuart Papers, Vol. I. p. 496. That the Word " Natural" in a 
Letter written by Edw. IV, is used in the Sense of' " Legitimate," 
Ellis's Origi?ial Letters, Vol. I. p. 9 ; and see ibid, p. 268, con- 
cerning a Bastard of Henry VIII, to whom Wosley was Godfather, 
and on the Appellation Fitzroy first given by King John.) War- 
burton conceives, that the idea of the sins of fathers being 
visited on children, was made a part of the Mosaic dispensation, 
in order to supply the absence of any hold upon the mind, 
arising from the opinion of a future state. In the same manner 
the law of bastardy, like the provision of forfeiture in treason, 
if it check the commission of offences highly prejudicial to 
society, may merit approbation ; although the means by which 
this end is accomplished, are, at first sight, revolting to our sense 
of justice. In the consideration of this subject, the remarks 
of Montesquieu may deserve attention, which tend to explain 
why bastardy ought to be more odious in free States, than under 
an arbitrary government. But whatever may be the expediency 
of the incapacities to which, by the spirit of our jurisprudence, 
illegitimate children are subject, considered as political regula- 
tions : the moral effect which the circumstances of their birth 
may have upon the mind, is a totally different question. As 
to this, the life of Savage affords an interesting comment on the 
text: and tends to shew that the aberrations of the offspring 
of an unlawful intercourse, are rather to be attributed to the 
disadvantages to which their education is likely to be sub- 
jected, than to any natural depravity derived from the crimes 
of their parents. This is the subject of pathetic lamentation, 
by that ill-fated man of genius. 



No mother's care 



Shielded my infant innocence with prayer : 

No father's guardian hand my youth maintained, 

Called forth my virtues, or from vice restrained. 

From ties maternal, moral and divine 

Discharged my grasping soul. — pushed me from shore, 

And launched me into life without an oar. 

(And see Edmund's Soliloquy in Lear. The Character of Absalom 
in Dry den's Absalom and Architophel. For a Mine of' Historical 
Information respecting the Subject of this Note, see TiraqueU dt 
Nobilitate.) 



155 



CHAP. XLII 



The Civil Laws decree that the issue always 
follows the venter, that is, the condition of the 
mother : for example, if a bond-woman be married 
to a free-man, the children shall be bond. Again, 
if a bond-man marrieth a free-woman the children 
shall be free : by the laws of England " the issue 
does not follow the condition of the mother, but 
always that of the father :" so that a free-man 
begetteth free children whether he be married to 
a bond or free-woman. So a bond-man, who is 
married, can beget none but bond-children. Which 
law think you is more equal in its decision 'i Is not 
that a cruel law, which, without any fault of the 
party, adjudges the issue of the free-man to be 
bond ; neither is that law deemed by some less 
cruel, which adjudges the issue of a free-woman 
to be bond: the Civilians say, that their laws give 
the best determination in the case; for they say, 
" A good tree cannot bring forth bad fruit, neither 
can a corrupt tree bring forth good fruit." And 
it has the consent of all laws, that every plant 
belongs to the soil where it is planted: the child 
also has a more certain knowledge of the mother 
who bore him, than of the father who begot him. 
To this the sages in our laws reply, that a child 
lawfully begotten hath no more certain knowledge 
of the one parent than of the other ; for both 
laws, however wide in other respects, agree in this, 
that he is' the father whom the marriage declarer 



156 

so to be. Is it not more reasonable that the issue 
should follow the condition of the father, than that 
of the mother, since Adam, speaking of such as 
are joined in wedlock, says, "And they two shall 
be one flesh:" which our Saviour, in the Gospel, 
thus explains, " they are no more twain but one 
flesh." And forasmuch as the male comprehends 
the female, the whole flesh, so made one, ought 
rather to regard and to be referred to the male, 
as the more worthy. " Male and female created he 
them, and called their name Adam." The Civil 
Laws themselves allow, that the woman always 
shines by reflexion from her husband, whence 
(C. Qui Professione se excusant L. nono L. fi.) the 
text has it, " We advance women by giving them 
the titles and honors of their husbands:" we honor 
them with the sirnames of our families. We 
proceed and decree for and against them in the 
Courts of law in the name of the husband. We 
change their habitations : but in case they after- 
wards marry a man of inferior rank, they are 
deprived of their former honors, and follow the 
condition, as well as habitation, of the latter 
husband. And since all the children, especially 
the sons, bear the name of the father, and not 
of the mother, whence can it be, that the son, 
in respect of his mother, should lose his rank 
and follow her condition, when, at the same time, 
he is known in law by the name of his father 
who begot him : nay, the woman is distinguished 
according to the rank and quality of her husband, 
neither of which can suffer diminution, or be 
sullied by any crime or base condition of the wife. 
That law ought to be accounted cruel and unjust, 
which, without any the least pretence or reason, 
leaves the son in a base condition. Again, as 
to the inheritance, which the father (a free-man, 
lying under no imputation, crime or disability 
in law, whereby forfeitures accrue) has, with great 



15? 

care and industry, acquired for himself and family, 
that in the case before us the inheritance should 
pass into the possession of a stranger who took no 
pains in the acquisition thereof, seems very unjust. 
Further, the base condition of the child affects the 
father's name with the same blemish. Again, that 
must needs be judged to be an hard and unjust law, 
which tends to increase the servitude, and to lessen 
the liberty of mankind. For "human nature is 
evermore an advocate for liberty." God Almighty 
has declared himself the God of liberty : this being 
the gift of God to man in his creation, the other 
is introduced into the world by means of his own 
sin and folly; whence it is, that every thing in 
nature is so desirous of liberty, as being a sort of 
restitution to its primitive state. So that to go 
about to lessen this, is to touch men in the ten- 
derest point : it is upon such considerations as 
these, that the Laws of England, in all cases, 
declare in favour of liberty. True it is, where 
the father is a bond-man, though married to a free- 
woman, the child is, by our laws, in the same state 
of bondage with the father; nor is this unreasonable 
or unjust: for a woman who has undervalued herself 
by marrying a bond-man, is thereby made one flesh 
with him. In consequence of the laws above re- 
cited, she follows the condition of her husband, 
and by her own voluntary act hath put herself under 
subjection to him, having been before under no 
constraint of the law so to do. Those, who by 
act of law enter themselves bond-men in the king's 
Courts, or sell themselves into bondage without 
any compulsion are in the same case. How then 
can the laws make that son free, whom the mother, 
in the present instance, has so brought forth in 
her state of subjection : for no husband can ever 
be so much in subjection to his wife, let her be 
of never so high a rank or quality, as this woman 
hath made herself subject to her husband; whom. 



158 

though a bond-man, she hath advanced to be her 
lord, according to the sentence of God himself, 
pronounced in Holy Scripture, " that every wife 
shall be in subjection to her husband, and he shall 
rule over her." What the Civilians say concerning 
the fruit of a good or corrupt tree, is more to our 
purpose than to theirs ; since every wife is either 
bond or free, according to the condition of her 
husband. And in whose soil (pray) does the 
husband plant, if not his own, when the wife 
is made one flesh with him ? What if he hath graft- 
ed a slip of good kind upon a crab-stock, since 
the tree is his property, is not the fruit still his 
fruit, though it favour of the stock ? So the children 
begotten of a woman are the husband's, whether 
the mother be bond or free. Nevertheless, by the 
laws of England, the lord of a bond-woman, who 
is married to a free-man, without his consent first 
had and obtained, I say, in this case, though the 
lord cannot get her divorced a vinculo matrimonii 
(it being expressly said in the Gospel, " Whom God 
hath joined together let no man put asunder.") 
Yet he shall recover against the free-man all his 
damages which he hath sustained by reason of the 
loss of his bond-woman, and of the service which 
she owed him. This, I conceive, is the sum, 
substance and manner of proceeding according to 
the laws of England, in the case now declared. 
And now, my Prince, what is your opinion of the 
matter, and which of the two laws do you judge 
to be the most eligible*? 



a Ulpian regards the maxim which is mentioned in the text, 
as a part of the Law of Nature. It may be considered as 
flowing from a more general principle in the Civil Law, " Pater 
est quern nuptiae destinant." Whereas the cohabitation between 
two slaves, or between a slave and a free-man, was called 
eontubernium, and not nuptia?, or matrimonium: and to such 
intercourse, the Imperial Law did not give so much countenance, 

as 



159 

as to presume the father certain. {Taylor's Civil Law, p. 425. 
Concerning the Right of Dominion in the Mother, see Hobbes' 
de Corpore Politico, c. 4.) 

This Chapter of Fortescue, is remarkable, for exhibiting 
a view,, taken by a contemporary writer, of a state of society, 
which has long ceased to exist in England. The origin of 
villeins in this Country, has been variously accounted for : 
The conquest of the Britons by the Saxons, or the circumstance 
of the latter people having brought over with them their 
slaves from Germany, are assigned as the probable causes 
of slavery in this Country : the practice of sanctuary, by which 
the person, taking refuge, was sometimes obliged to become 
the villein of the proprietors of the asylum, may have 
increased the numbers of the servile class. By an inhuman 
Act, passed a. d. 1543, vagabonds were adjudged to be the 
slaves of any one who presented them to a justice. It was 
contended by Mr. Hargrave, in his argument for Somersett 
the negro, that the English Law recognized as villeins, only 
those persons whose families had been such time out of 
mind. (Arc/ueol. Antiq. Soc. Vol. II. p. 312, 349- Hallam's 
Middle Ages, Vol. II. p. 136. Burnet Hist. Ref. Part II. B. 1. 
p. 83.) In enquiries respecting the condition of the ancient 
villeins, it is necessary to attend to the distinction between the 
villani and servi, which is preserved throughout Domesday 
Book, and to the primary meaning of the term " villanus, " as 
collected from the more ancient laws, in which it is used 
to signify simply the inhabitant of a Vill. (Lord Littleton's 
Henry II. Note to a Law of the Conqueror, Append, to Book I, 
and the Notes to Book II. Rennet's Parochial Antiq. Gloss. 
Villanus, Servus ; Hallam's Middle Ages, Vol. II. p. 135. Diss. 
on D. B. Report of the Commissioners for the Public Records. 
For the use qf these Terms by our earliest Law Writers ; Glanville, 
lib. v. per totum. Bracton, lib. iv. p. 190, 192.) Villenage forms 
the subject of the fifth book of Glanville: and it is highly interest- 
ing to trace the gradual relaxation of the many rigorous principles 
of the law, in respect of villeins, which prevailed in the time 
of that author. Thus, with reference to the subject of the 
present chapter, he lays it down, that if a free-man take to 
wife a woman born in Villenage, he shall be deemed a 
villein during the marriage: but we learn from Britton, 
that the law afterwards changed, and the wife became en- 
franchised, so long as the husband lived. (Glanville, lib. v. c. 6. 
Britton, 78 b.) As many persons, of free condition, held lands 
according to Bracton's expression, " nomine villenagii et non 
nomine personae," it would be irrelevant to investigate the 
circumstances attending transformation of villenage tenures, 
into the modern copyholds : it may be noticed, that more 
than half of the lands in this Country, are supposed to have 

been 



160 

been held by base services ; however, at the period when 
Fortescue wrote his treatise, it is probable the tenure by pure 
villenage, was nowhere to be met with in England. (See 
on this Subject, Reeves's History of the Law, Rich. II. Edw. IV. 
Hallam's Middle Ages, Vol. II. p. 134, 381, 385. Blackstone 
on Copyholders. Barringion on 1 Rich. II.) To Wickliff and 
his followers, is to be ascribed the merit of propagating j the 
doctrine, that the Christian Religion is repugnant to slavery : 
Sir T. Smith, mentions that the lower orders of the Clergy, 
were very zealous in procuring the manumission of villeins: 
a preamble to a manumission by Henry VIII, recites that 
the act is pious and meritorious with God, who created all 
men free: a commission is preserved in Rymer, which was 
issued by Queen Elizabeth, for giving their freedom to such 
of her villeins, as chose to pay a composition ; whereas Glanville 
states it to be the law when he wrote, that a villein was in- 
capable of purchasing his own manumission : Sir T. Smith 
says, that in all his time, he never knew any instance of 
a villein in gross. Mr Hargrave, in his argument for Somersett 
the negro, has detailed a multitude of devices and fictions, 
by which the law of England assisted a man in liberating 
himself from bondage : and he has collected the rules, which 
have been adopted in his favour, for the purpose of securing 
him an impartial trial, when his liberty is at stake. In the 
same spirit, Lord Bacon and Sir E. Coke enumerate three 
things, to which the law of England extends its extraordinary 
protection, and these are, life, dower, and liberty. (On Charters 
of Manumission, see Hickes's Diss. Epist. Madox's Formulare 
Anglicanum. Robertson's Charles V. Vol. I. n. 20 : On Villeins 
being included in 2Qth Art. of Magna Charta. Hallam, Vol. II. 
p. 382 : On the Court for the Misdemeanors of Villeins, 4 Inst. 
p. 166. On the Use of the Term Slave, St. 1 Edw. VI. c. 3. 
On the Point, whether the King can confer Knighthood on a Villein 
Petyt. Manuscript, Vol. XXXIX. p. 1 19 b. Petition of the 
Barons, that no Villein should send his Son to School, Brady, 
Vol. III. p. 3Q3. On the Protection of the King's Presence to 
a. Villein. Plowden, 323. Questions of Law and Concience respect- 
ing Villeins: Doctor and Student, Dial. I. c. 43. Dial. II. c. 18, 
and lQ. On the latest Testimonies to the Existence of Villenage in 
England. Hallam, Vol. II. p. 393.) 



161 



CHAP. XLIII. 



Prince. There is no pretence in reason to 
doubt but that in this case the Laws of England 
excel the Roman Imperial Laws: and, for my 
own part, I always think that law most eligible, 
which shews more favour than severity to the 
parties concerned in it, and who are to be judged 
by it. For I remember an excellent rule, which 
says, "that matters of hardship are odious, and 
ought as much as possible to be restrained, but 
favours are to be amplified, and extended to their 
full extent." 

Chancellor. With good reason. I will propound 
one case more, wherein the two laws differ, and 
then conclude; lest I prove tedious, whilst I ex- 
patiate upon the variety of more cases, and the 
difference each law observes in its decision; and 
so my discourse would be drawn out into such 
a length, as instead of entertaining, to disgust 

you. 



162 



CHAP. XLIV. 



The Civil Laws commit the guardianship of 
orphans to the next in blood, whether the relation 
be by the father's or mother's side, that is, to 
every one as he stands next in degree and order, 
to take by inheritance, in case the orphan die. 
The reason of this law is, "no one is presumed 
to take more care of, or to have a greater regard 
for the orphan, than he who is next in blood." 
The Laws of England determine quite contrary 
in the case. If an inheritance which is held in 
socage descend to .an orphan from any relation 
by the father's side, such orphan shall not be in 
guardianship to any of his father's relations ; but 
he shall be taken care of by the relations of his 
mother's side. Again, if an inheritance descend to 
him from any relation by the mother's side : the 
orphan and such his estate shall be under the 
care and direction of the next akin by the fa- 
ther's side, and not otherwise, until he come of 
age. The law says, " to commit the care of a 
minor to him who is the next heir at law, is the 
same, as delivering up a lamb to the care of a 
wolf, that is, to be made a prey of." But if the 
inheritance be held by knight's- service, and not 
in socage, then, by the laws of the land, the 
minor and his estate shall not be under the 
management of his relations of either side; but 
both shall be under the care and direction of the 
lord of the fee, until he arrive to his complete 



163 

age of one and twenty: who can be supposed 
better qualified to instruct him in deeds of arms, 
which, in virtue of his tenure, he is obliged to 
perform for the lord of the fee, than the lord 
himself, to whom such service is due from his 
minor; and who is supposed to have a superior 
interest to advance his ward in the world, in this 
and other parts of education, than any of his own 
relations or friends. The lord, in order to have 
the better service from his tenant, will use his 
utmost care, and may well be thought better quali- 
fied to instruct him in this way, than his own 
relations, who, probably, in this respect are pre- 
sumed, for the most part, wholly ignorant and 
unpractised ; especially, if his estate be but a small 
one: what is or can be of greater use to a minor, 
who, in consequence of his tenure is obliged to 
venture his life and fortune, if required, in the 
service of the lord, than to be trained up in mili- 
tary discipline, whilst he is yet a minor. When 
he comes of full age, he cannot decline the nature 
of his tenure, but is obliged to do suit and service 
to his lord of whom he holds. Indeed, it will be 
of no small advantage to the kingdom, that the 
inhabitants be expert in arms; for the philosopher 
says, "every one behaves boldly in that way in 
which he knows himself to excel." Is not this 
law then, in your judgment, my Prince, to be 
preferred to the other already described*? 

a The comparison instituted in this chapter between the pro- 
visions of the Civil Law and of the Common Law, in respect 
of the appointment of guardians, is cited with approbation by 
Coke in his Institutes, (Co. Litt. 88 b.) the expression ** agnum 
committere lupo ad devorandum" is similarly applied in the 
Assizes de Jerusalem and in the Statutum Hiberniae, 14 Henry 
III : and the same jealousy of committing the care of the orphan, 
to a person who can derive any benefit from his death, is found 
in the laws of other countries. (Assizes de Jerusalem, c. 178. Barr. 
on 14M Henry III; and see Glanville, lib. vii. c. 11. Bracton, 

lib. ii. 
L 2 



164 

lib. ii. c. 37. and further concerning this Rule, Craig. Jus. 
Feud. L. 2. D. 20. s. 6. Sullivan's Lect. 127- 2 P. Wins. 262) 
The reader will probably think that the reasons advanced in 
favor of the English Law of guardianship, upon this particular 
point, had, it is to be presumed, considerable weight in less 
civilized times, but are not applicable to the present state of 
society ; and that a person who may eventually become entitled 
to an estate, will be more likely to preserve it than one who 
has no prospect of possessing it. In the Civil Law, after Jus- 
tinian had abolished the distinction of the "agnati" and 
" cognati " in respect of the right of inheriting, there could 
be no proximity in blood, without proximity of succession. 
The regulations of the Civil Law for the protection of minors, 
were far more perfect than any which existed in this Country, 
in the time of Fortescue. It had its testamentary guardians, 
and guardians by the assignment of the magistrate : whereas our 
testamentary guardianship is of no earlier date than the reign 
of Charles II; and the jurisdiction of our Chancellors, in the 
case of wards, has not been traced higher than the year 1696. 
(Ilargt . Co. Lift. 88 h.) The Civil Law abounds with judicious 
provisions for the proper execution of the office of the Tutor 
and the Curator: and the discharge of these important trusts 
was a compulsory duty. Our guardianship in socage is a very 
defective institution : originating wholly from the tenure of 
lands, it does not arise unless the infant is seized of real pro- 
perty, holden by socage, and descended upon him. The minor 
has no guardian in socage, if he be possessed merely of lands 
obtained by purchase, in the technical sense of the term, or if 
he have only rent charges or other hereditaments not lying 
in tenure, equitable estates, personal property or copyholds : in 
cases where the guardianship in socage exists, it seems doubtful 
whether it embraces personal property : and there is reason to 
believe, that the guardianship in socage was anciently the sub- 
ject of lease and transfer : lastly, it was not until the reign of 
Anne, that the action of account was given against the ex- 
ecutors of guardians in socage : whilst before the expiration of 
the guardian's trust, the only remedy for his misconduct is in 
Chancery — As to the guardianship in chivalry, the Law of 
Wardship, was, at the time Fortescue wrote, principally re- 
gulated by the Statutes of Merton and Westminster the first: 
However plain the title to the ward might have been, when 
the lord and tenant held in fee simple, yet it became a matter 
of great perplexity, when there were reversions and remainders ; 
and when questions of prerogative, of collusion, and the rights of 
priority, and posteriority were intermingled with the doctrines 
of estates, discontinuances, disseisins and remitters. The ward- 
ship was considered an interest in the guardian, rather than a 
trust for the minor : it was saleable ; it passed to the Lord's 

representatives ; 



165 

representatives: subject to the expence of maintaining the in- 
fant, (a duty, the enforcing of which was not very carefully 
provided for by our law,) the guardian received all the profits 
accruing out of the land of the ward, for his own emolument. 
Madox has collected from the records of the Exchequer, nu- 
merous instances of trafficking for the King's wards : It appears 
from the Great Roll of Henry III, that twenty thousand marks 
were given for the marriage of Isabel, Countess of Gloucester. 
(Madox's Exchequer, 221 et seq. 322. and see Coke's Comm. on 
Magna Charta, c. 4.) The Paston Letters exhibit many of the 
evil consequences., arising out of the guardianship in chivalry. 
So precious were wardships considered in former times, that the 
conveyance of the ward from place to place, was often a matter 
of considerable danger; we read, on one occasion, of a child 
being dressed up in a manner to resemble the ward, and 
being dispatched with a retinue, whilst the real ward was 
carried privately by another route. The Sherj/F was sometimes 
called upon to take the ward out of the hands of the guardian, 
who used to detain him beyond the legal period, under a pre- 
tence that he was not of age. (Paaton Litters, Vol. III. Lett. 51, 
54, 55, 56, 6'4. Vol. IV. Lett. 5Q. ad Jinan.) The importance 
which the feudal lords attached to their wardships, is apparent 
from the numerous fluctuations in the law respecting them, 
observable in the early Charters, and the articles of Charters. 
(See B/ackstone on the Charters, passim.) It will not fail to occur 
to the reader, that most of the advantages pointed out by For- 
tescue, as resulting from the guardianship by Knight Service, 
are inapplicable to the case of female wards : whilst the severities 
to which they were subjected by the Feudal Law of this Country, 
exceeded those to which the male heir was liable. (Glanville, 
lib. vii. c. 12. Lord Lyttleton's Henri/ II. Book II. p. 204. 
Hallum's Middle Ages, Vol. II. p. 165. On the Antiquity of 
Wardships, Hallam, ibid. Spelman on Feuds, cxv; and see ibid, 
on the Expression in St. Merton, " Si parentes conqucrantur." 
2 Inst. 191. On the Court of Wards, 4 Inst. 188. And further 
on the Topics adverted to in this Note, Hargr. Co. Litt. 88 b. 
•particularly as to the Guardianship by Nature, and its Interference 
with that of Chivalry. Reeves's History of the Law, Henry VI, 
Edw. IV. Ley on Wards and Liveries. Sir T. Smith de Rep. 
lib. iii. c. 5.) 

The numerous inventions which were practised for the 
purpose of evading the guardianship in chivalry, prove, that 
it was looked upon by the nation as a severe burthen. An 
attempt was made in the time of James, to give a compensation 
to the King, in lieu of his revenue arising from wards and 
liveries. (See Coke's Remarks on this Transaction, 4 Inst. 202.) 
And in the reign of Charles II, the abolition of these and other 
feudal oppressions, was accomplished on the terms of conferring 

upon 



166 

upon the Crown a perpetual excise. (For some curious particulars, 
relative to the debates on this occasion, Harris's Life of Charles II. 
p. 369. et. seq. Rose's Observations on Forts Historical Work, 
p. 28. Heywood's Vindication, p. 94.) Fabian Phillips has ar- 
gued with some plausibility against the abolition of feudal 
wardships ; and he dilates with considerable eloquence on the 
mischiefs which must accrue from the loss of " a seminary 
of honor, a standing, noble, and more obliged militia." (Lige- 
ancia Lugens, and Tenenda non Tollenda.) Mr. Brodie suggests, 
that the Law of Wardship had the effect of preventing the 
aristocracy from acquiring a pernicious influence in society, 
by accumulations during long minorities, at a period when 
the other ranks of the community were not able to form a 
counterpoise to them. The reader will probably think that 
the institution of the guardianship in chivalry merits his 
study and attention, not more on account of its effects upon 
the education and manners of our ancestors, than of its in- 
fluence on the progress of the domestic liberties of the Country, 
during a considerable period of our history, by the organizing 
of an armed population, in the absence of mercenary forces, 
or even of royal guards. 



167 



CHAP XfiV. 



Prince. It is so; for in the first instance (as 
you observe) it provides with greater care and 
caution for the preservation of an orphan, than 
the Civil Law does : but I am much more pleased 
with the other part of it ; because, by this means, 
our young nobility and gentry cannot so easily 
degenerate; but will rather, in all likelihood, go 
beyond their ancestors in probity and courage, and 
in every thing that is virtuous and praiseworthy, 
being brought up in a superior and more honorable 
family than that of their parents: nay, though their 
fathers may have had the good fortune to be educated 
in the like manner before, yet the father's house, 
even with this advantage, cannot be compared to 
that of the superior lord; to whom both, in their 
turns, have been in ward. Princes of the realm, being 
under the same regulation, like as other lords, who 
hold immediately from the king, cannot so soon run 
into debaucheries, or a downright ignorance: because, 
during the time of their minority, they are brought 
up at the court. Upon which account I cannot but 
highly commend the magnificence and state of the 
king's palace, and I look on it as an academy* for 

a It was anciently a very common practice for people of 
condition, to procure their children to be admitted into the 
house of some great person, in which they discharged menial 
offices, and procured in return superior advantages of education, 
and the prospect of future patronage : Sir Thomas More gave 
an early promise of his extraordinary talents, during the time 
he waited at the table of Cardinal Morton. Many curious par- 
ticulars 



168 

the young nobility of the kingdom to inure and 
imploy themselves in robust and manly exercises, 
probity and. a generous humanity. — All which 

ticulars are related of the domestic establishment of Wolsey, 
to which there belonged nine or ten lords, fifteen knights, and 
forty squires : Lord Percy, the admirer of Anne Boleyn, was of 
this number. Traces of the same custom, are to be seen in 
the familiar letters of the period when Fortescue wrote. {Paston 
Letters, Vol. III. Lett. 34, 35. Vol. IV. Lett. 14.) And it appears 
from Sir G. Wheeler's Protestant Seminary, cited in Dr. Words- 
worth's Ecclesiastical Biography, that the practice was not obsolete 
in the time of Charles I. The restraint upon the marriage of the 
nobility, exercised by some of our Sovereigns, seems to have 
arisen from the personal submission, which was voluntarily 
yielded by the children of distinguished families, owing to the 
limited openings, then existing, for talent and enterprise. — The 
Dutchess of Newcastle, in the life of her husband, mentions, that 
he possessed a singular knowledge of the use of weapons, which 
he communicated to no person excepting his own sons, and the 
Duke of Buckingham, his ward : The martial sports, by means 
of which the youth of this Country were formerly instructed in 
the art of war, are detailed with great minuteness by Strutt. 
The tournament was a general name applied to these warlike 
games ; under which was comprised the quintain, tilting at the 
ring, tournaments, or combats of several knights, justs, or 
combats between individual knights : from the exercise of the 
two last species of diversion, all persons below the rank of an 
esquire were prohibited. These occupations were considered of 
so great importance, that a Statute was made in the reign of 
Henry V, prescribing regulations for the conduct of them. 
(Strutt's Antiq. Vol. II. Sirutt's Ancient Sports. Madux Bar. 
Ang. 202. 3 Inst. 160. Journal of Edw. VI, 2 Burnet. Hist. Ref. 
p. 62. Archceol. Antiq. Soc. Vol. XVIII. Gloss. Mat. Par. -v. 
Torneamentum. Nvga; Antiquie, p. 1.) In Henry's History are 
detailed the particulars of a grand tournament held in Smith- 
field, a. d. 1467- (Henry, Vol. V. p. 536.) And in the Paston 
Letters, mention is made of a Spanish knight having come to 
England with a scarf round his arm, offering to run a course 
with a sharp spear for his fair mistress' sake. (Vol. I. Lett. 2.) 
It is true, that the reign of Henry VI, is not a distinguished period 
in the annals of English chivalry ; and proclamations of that time 
were sent round to the Sheriffs of the different counties, " De 
fugitivis ab exercitu, quos terriculamenta Puellae exanimaverunt, 
arestandis." (Rymer, Vol. X. p. 459, 472.) The attention given 
by our ancestors to these exercises, which exhibit the lively 
image of war, has contributed in no immaterial degree to our 

national 



169 

greatly tend to the reputation and prosperity of the 
kingdom, both at home and abroad ; and make a 
great part of its security against invaders, and render 
it formidable both to its allies and enemies. This 
advantage could not accrue to the stale, if the young- 
nobility and gentry were to be brought up under 
the care and inspection of their own friends and 
relations, who are but persons of the same rank 
and quality with themselves. As to the sons of 
the burghers, and other freeholders in socage 
tenure, it cannot be prejudicial to the publick good, 
if they be brought up among themselves, with 
persons of their own degree, and though they be 
not bound to perform any military services; as, to 
any one who considers aright, may very plainly 
appear 6 . 

national glory. And, it is in the splendid tournaments of the 
Court of Elizabeth, that we trace the sources of that chivalrous 
enthusiasm, which instigated the achievements of Lord Herbert 
of Cherbury ; and signalized the last moments, even more than 
the life of Sir Philip Sidney. (Account of the last Hours of Sir P. 
Sidney, Harl. Manuscripts. Vitellius, C. xvii. 302. His Military 
Funeral, Ellis's Original Letters, Vol. III. Spenser's Astrophel. 
Comparison between Sir P. Sidney, Lord Herbert of Cherbury and 
the Chevalier Bayard. Lyltletons Henri/ II. Note to Book i/.) 

b The obligation of military service, arising from tenure, is 
enforced by the laws of the Conqueror : although the principle 
upon which the extent of the duty was regulated has been the 
subject of controversy among legal antiquaries. (Selden's Tit. 
Hon. Part II. c. 5. §. 17- Spelman on Feuds, c. 27, on the question 
whether a Knight's Fee was limited by any definite portion of Land, 
as two Carucates. See concerning Voyages Royal, and the terms 
" Intrinseca" and " Forinseca" applied to services, Hargr. Co. 
Litt. 6<). b. n. 3. from Hale's Manuscripts. J4. a. n. 1. 107. #• «• 5. 
Madox, Bar. Ang. p. 226. Reeves's Historr/, Henry III. Bracton, 
p. 35. b. Arguments in the Case of Ship Money.) The Norman 
Chronicle expresses with clearness the motive and the man- 
ner of levying the first general scutage in this Country, 
which was on the occasion of the expedition against Toulouse, 
in the reign of Henry II. A levy of this nature had been 
before assessed, in the second year of the same King, upon 
Bishops and Abbots holding in capite. {Cliron. Norm. p. pp.5, 
Madox's Exch. c. 26.) The equivalent of scutage does not appear 

to 



170 

to have been always accepted during the subsequent reigns, espe- 
cially in the case of tenants in capite holding "ut de corona:" and 
fines were occasionally exacted from the Barons, on account of their 
neglect in performing personal service — This imposition was made 
the subject of parliamentary assessment; the accomplishing of which 
is a matter of curiosity in the history of our early charters : It 
gave rise to several forms of reservation of services, which were 
made with reference to it, as, for instance, the payment of a 
specified proportion of all escuages, assessed by Parliament : 
And whether from this circumstance, or from its being annexed 
to some particular species of knight-service, and not embracing 
others, such as cornage and castle-guard, escuage is sometimes 
spoken of both by Lyttleton and Coke, as if it were a distinct 
tenure from knight-service, instead of being incident to it, like 
homage and fealty. (Wright's Tenures, p. 122. Madox's Bar. 
Angl. p. 227- Hargrove's Notes to Coke Lyttleton, Chapters 
on Escuage and Knight Service. Madox, Exch. c. 26. Lord 
Lyttleton' s Hen. II. Notes to Book II.) The last occasion upon 
which escuage was imposed by the Parliament, occurred in the 
reign of Edward II, and the mode of levying it was merely tra- 
ditionary in the time of Lyttleton: Our Kings were generally 
supplied in their wars by contracts with the nobility and gentry, 
to serve with so many men, according to the terms of an in- 
denture; this practice appears to have existed as early as the 
reign of Edward III. (Cotton's Abridg. of the Records, 13 Edw.III. 
and the References to Brodie's Introduction, p. 246. Henry's 
History, Vol. V. p. 460. Barrington on 17 Edw. IV. Case of 
Soldiers, 6 Rep. See the Copy of an Indenture for Service 
against France, in the 19th Hen. VI, and a Letter of the King 
upon the Subject of the same Expedition, to the Bishop of Bath, 
Archceol. Antiq. Soc. Vol. XVII.) The history of the As- 
sizes of Arms and Commissions of Array, depends alto- 
gether upon a different principle than that of the feudal 
obligation, founded upon the tenure of lands. — We read very 
little of private wars in England ; and they do not appear 
ever to have been legal, notwithstanding there is a passage in 
Glanville which seems to sanction them : after mentioning 
the cases in which a lord might claim an aid from his vassals, 
he states it as doubtful, whether he might also do so ad guerram 
suam manutenendam : The most prominent instance of what 
might be deemed a private war, arose out of a contention between 
the Earls of Glocester and Hereford, in the reign of Edward I, 
which terminated in both of those powerful nobles being com- 
mitted to prison, and paying heavy fines. There is a letter, 
in Mr. Ellis's collection, written by Henry VII, to Sir W. Say, 
which shews, that it was the practice till a late period for persons 
even of an inferior rank to the nobility, to call upon their vassals 
to assist them in determining their private feuds. But such acts 

of 



171 

of outrage and spoliation were repeatedly punished as breaches 
of the King's peace. (Glanville, lib. ix. c. 8. Hale's P. C. p. 135, 
Ellis's Original Letters, Vol. I. 3Q. Hallam's Middle Ages, Vol. II. 
p. 200. Extracts from D. B. by Gale, Scrip. Hist. Brit. p. 759, 
777- Earl of Northumberland's Case, 5 Hen. IV, Vaughan 
142. Robertson's Charles V. Vol. I. Note 21, where some reasons 
are suggested to account for Private Wars being more rare in 
England than on the Continent.) It will be collected from the 
circumstances which have been adverted to in this note, that the 
feudal institutions did not produce in England those habits of 
military life, for which the manners of the continental nations 
of Europe, during the early period of their history, were so 
conspicuous. A reflection which may go far in explaining the 
remarkable fact of our ancestors having so eminently surpassed 
the inhabitants of other European States in a respect for civil 
rights, the maintenance of equal law, and the establishment 
of an envied Constitution. 



172 



CHAP. XLVI. 



Chancellor. There are some other cases in 
which the Civil Law and the Common Law of 
England differ. For instance: the Civil Laws, in 
case of a manifest theft, where a person is taken 
in the fact, adjudge the criminal to restore fourfold, 
and for a theft which is not so manifest, where the 
proof is not so plain, the judgment is twice the 
value of the thing stolen. But the Laws of Eng- 
land, in either case, punish the party with death, 
provided the thing stolen, exceed the value of twelve 
pence. So in the case of persons who have been 
bondmen, and are set free, if afterwards they mis- 
behave, and prove ungrateful, the Civil Laws ad- 
judge them into slavery again. But, by the Laws 
of England; he who is once made free, is always so, 
let his behaviour afterwards be what it will. Other 
cases there are not a few, of this and the like kind, 
which, for brevity's sake, I pass over. In the two 
cases now propounded, I forbear to expatiate, or 
insist upon the superior excellence of the Laws of 
England: the properties of each law do not require 
such a nice examination : besides, I doubt not, your 
own good natural genius sufficiently distinguishes 
between them a . 

a It will be remembered, that theft was not considered in 
England one of the Pleas of the Crown until Magna Charta, 
(Reeves's History of the Law, cap. 8. Glanv. lib. i. c. 2. 2 Inst. 
32.) and that the civil remedy by appeal of larceny was conti- 
nued till the Statute of Henry VIII. made for the restoration of 
stolen goods. (Barring/on on Stat. 21 Hen. VIII. 3 Inst. 242.) 

In 



In examining the criminal jurisprudence of this Country, in 
ancient times, it is proper to take into consideration the privi- 
leges of clergy, and of sanctuary, which had a material influence 
on the practical effect of penal enactments. Benefit of clergy 
■which was at first claimed in favor of clerks in holy orders, was 
gradually extended to all persons who were able to read : and, 
indeed, in the case of a felon who was tried before Fortescue, the 
prisoner was admitted to this privilege, although he could only- 
spell and so put syllables together. In the time of Edward VI. 
a Statute was passed for extending the benefit of clergy to 
noblemen who could not read. In the reign of Henry VII. and 
more particularly of Henry VIII. benefit of clergy began to be 
modelled by the Legislature into a new form, and to be used as 
a distinction between offences and not between persons. The 
subsequent history of this privilege, corresponds with the pro- 
gressive improvement of trade and commerce in the Country. 
{Reeves's History of the Law. Edw. I. Edw. III. Hen. VI. Edw. 
IV. Hen. VII. Hen. VIII. Barrington on 23 Hen. VIII. cap. 1.) 
No restrictions appear to have been imposed on the privilege of 
sanctuary until the reign of Henry VIII. Nor was this impo- 
litic custom abolished till the time of James. {For an Account of 
Sanctuaries in England, Archceol. Antiq. Soc. Vol. VIII. Paston 
Letters, Vol. II. Lett. 24. 3 Inst. 115.) The distinction between 
thefts manifest, and thefts not manifest, is conspicuous in our 
ancient jurisprudence : it is discernible in the Saxon Laws. 
The old expression, " to be taken in the manner " is explained 
by Barrington to mean " detected with the thing holden in his 
hand," which is called in Bracton, "hand-habend," and he 
supposes that the terms infangthief and utfangthief have refer- 
ence to the same distinction, but in this he is not supported by 
the glossarists. Of the like nature are the divisions of offences 
according to the Forest Law, "Dog-draw, stable-stand, back- 
bare, bloody-hand;" and by the Halifax Gibbet Law, the 
prisoner must have been taken hand-habend, or back-berend, 
before he was subject to be tried and beheaded, according to the 
singular custom of that place. ( Wilkins's Leges Anglosaxonix, 
242. n. 6. 257. n. 9. Manwood, 193. Barrington on 1 Hen. VIII. 
— On the Offence of Sakebere, 3 Inst. 69-) The distinction be- 
tween grand and petit larceny is found in the Saxon Laws : in 
some ancient books of Crown Law, the value of twelve pence 
without more is stated to make the offence a capital felony. 
( WHkins's Leges Anglosaxonicx, p. 70. 259- n. t. Kelham's Briton, 
c. 15. n. 2.) An important change was taking place in the 
principles of Criminal Law, at the period when Fortescue wrote 
his treatise, by the gradual rejection of the old maxim of "vo- 
luntas reputabitur pro facto;" and the practice was nearly 
obsolete of punishing men for crimes which they had only 
meditated, but had not actually committed. {Reeves's History of 

the 



174 

the Law, Hen. VI. Edit. IV. Year Book, 13 Hen. IV. 85, an 
indictment for that " il gisoit depradando." 9 Edw. IV. 28.) The 
severity of punishment in cases of larceny inflicted by our 
ancient laws did not produce the effect expected to be derived 
from it. Fortescue in his Treatise on Monarchy, mentions that 
there were more men hanged in England for open robbery in a 
year, than in France during seven years, which he ascribes to 
the " lack of heart" of the French people : it appears from the 
Paston Letters, that the roads near London were much infested 
with robbers. (Vol. III. Lett. 64>.) At a period of history 
somewhat later, the distresses of the population arising from the 
system of inclosures, and the dissolution of the religious houses, 
led to the execution of such numbers of malefactors, as to affix to 
those criminal laws, which are the subject of Fortescue's com- 
mendation, a very bloody and appalling character. (Sir F. 
More's Preface to the Utopia, "fures nonnunquam suspendi viginti 
in una cruce," Harrison's Description of Britain in Holin. Vol. I. 
p. 182. et seq. where amongst other facts, it is said that Henry VIII 
hanged threescore and twelve thousand.) 

With respect to the remarks of Fortescue, concerning the 
Civil Law in this Chapter, it is to be noticed, that a distinction is 
observed by Justinian, between public and private crimes, the 
latter class being such as besides the mischief to the public, 
occasioned a particular damage to individuals. But, in addition 
to the civil remedy, which was given to the party injured, there 
might be a criminal prosecution for a private crime : accordingly 
there were many punishments, other than of a pecuniary nature, 
prescribed against theft by the Civil Law: and the different 
circumstances under which theft might be committed, are defined 
and provided for by the Civil Law with a precision in which • 
our own laws were long deficient. (Wood's Inst, of the Civil 
Law ; and see Lord Kaimes's Tract upon Criminal Law.) 

The comparison between our Municipal Laws, and those of 
Rome, and other countries, is further pursued by several 
English writers. (Fulbecke's Parallel between the Civil Law, 
Canon Law, and Law of the Realm of England, published a. d. 
1618. Dr. and Student, Dial. ii. c. 45.) 



175 



CHAP. XLVLI 



Prince. I think indeed that it requires no 
great labour or study, to determine these two points. 
For though in England felons of all sorts are every 
where punished with death ; yet they still go on in 
defiance of all laws to the contrary : and, how 
much less would they abstain, if only a gentler pu- 
nishment were threatened and inflicted? As for those 
who have obtained their freedom, it would be hard 
if they should always live under the lash, as it were ; 
and, in fear of being again reduced to a state of 
slavery ; especially upon the pretence or colour of 
ingratitude, since pretences of this kind could never 
be wanting; the several instances and species of 
ingratitude being innumerable. "Human nature, in 
case of liberty, demands greater favours than is 
usual in other cases." But, my good Chancellor, 
not to enter into the disquisition of any more cases 
of this sort, I beg you to inform me why the Laws 
of England, which are so useful, so beneficial and 
desirable, are not taught in our Universities, as 
well as the Civil and Canon Laws, and why the 
degrees of Bachelor and Doctor are not conferred 
upon the Common Lawyers, as is usually bestowed 
on those who are educated in other parts of learn- 
ing 8 . 

a Queen Elizabeth addressed the University of Cambridge in 
Latin, after being informed, that nothing was allowed to be said 
openly to that learned body in English. Her speech is given 
in Peck's desiderata curiosa; the commencement of it is in , the 
following terms: "Etsi foeminilis pudor, clarissima Academia 

subditique 



176 

subditique fidelissimi, in tanta doctorum turba inelaboratum 
hunc sermonem et orationem me prohibet apud vos narrate, &c" 
(See respecting the Injunctions for speaking Latin in private Col- 
leges, by the Charters of Foundation, Fuller's Worthies, p. 222 ; 
aiid the Life of Waynfeele.) An arrangement of the Common 
Law was made by Dr. Cowell, after the model of the Institutes 
of Justinian, and written in the Latin language, with the pro- 
fessed view, that in the Universities where the Civil Law was 
studied, the transition might be rendered more easy to an ac- 
quaintance with the Municipal Law. Blackstone, in his Com- 
mentaries, speaks of the reason given in the text for the neglect 
of the Law of England in our Universities, as being unsatis- 
factory ; and he attributes the circumstance to the jealousy 
entertained of the Municipal Law, by the Popish Clergy. 

It can scarcely be doubted, that if the system of education, 
adopted at the Universities, were to be modified with the 
peculiar view of forming the mind and character of the future 
lawyer, it ought to undergo material alterations. It would 
embrace a more extensive range of acquirements, and would 
comprise the historical occurrences of modern, not less than of 
ancient, times. Whereas at present by every deviation from the 
pursuit of classical, or mathematical knowledge, the student 
makes a sacrifice of his prospects in the University, and of 
academical fame. The object of a lawyer's acquaintance with 
the abstract sciences, and the writers of antiquity, is to learn 
to think with propriety, and to act with magnanimity, in the 
circumstances of life, in which his profession may place him ; 
and to acquire the art of expressing his sentiments with preci- 
sion, simplicity, and good taste. It is not to excel in the 
legerdemain of the analyst, or to acquire a pre-eminent know- 
ledge of tongues. In this view it is thought, that much of the 
attention which the ambitious student in the University devotes 
to his Greek, his Latin, or his Mathematics, might be better 
directed; at the same time, without his abandoning the inesti- 
mable advantages which a lawyer may reap from those important 
studies. However, constituted as the system of academical 
education at present is, the future lawyer is employed at the 
University during the period of life usually spent there in a 
manner infinitely more advantageous than in the receptacles of 
an attorney's or a special pleader's office, where the arts of 
litigation, and not the precepts of Justice are inculcated : In the 
Universities the student will find leisure and encouragement to 
prepare himself for the exercise of his profession, by climbing up 
to the " vantage ground," so my Lord Bacon calls it, of science ; 
instead of grovelling all his life below, and finishing his mean, 
though gainful career, by ultimately attaining to the character 
of the pettyfogger, described by Cicero: "Leguleius quidam. 
cautus, et acutus pra?co actionum, cantor formularum, auceps 
syllabarum." 



177 



CHAP. XLVIII 



Chancellor. In the Universities of England 
the sciences are taught only in the Latin tongue, 
whereas the Laws of England are writ in, and made 
up of, three several languages, English, French and 
Latin. English, as the Common Law has mostly 
prevailed, and been used among them ; a great part 
of it being derived down from the old inhabitants, 
the Angles. French, because the Normans upon 
the coming in of William, called the Conqueror, 
and getting possession of the kingdom, would not 
permit our lawyers to plead but in that language 
which they themselves knew, and which the advo- 
cates of France use in their pleadings, and in their 
Parliaments. In like manner the Norman- French, 
after their coming into England, would not pass any 
accounts of their revenues, save in their own native 
language, lest they should be imposed upon : even 
in their exercises and diversions, as hunting, dice, 
tennis, &c. they observed the same method: whence 
it has happened, that the English, from such their 
frequent intercourse with the French have given in 
to the same custom ; and to this very day, in their 
diversions, and their accounts, they speak French: 
in the Courts of Justice they formerly used to plead 
in French, till in pursuance of a Law to that pur- 
pose that custom was somewhat restrained, but not 
hitherto quite disused ; first, by reason of certain 
law terms, which the pleaders express more aptly 
in French than in English: in the next place, 

M 



178 

because Declarations upon Original Writs cannot be 
formed so properly and agreeably to the nature of 
those Writs as in French, in which language the 
forms of such Declarations are learned and prac- 
tised. Again, all pleadings, arguments and resolu- 
tions, which pass in the King's Courts are digested 
into books for the information of the young students, 
and are reported in the French tongue. Many Acts 
of Parliament are penned in French, from whence 
it comes to pass that the modern French is not the 
same with that used by our lawyers in the Courts of 
Law, but is much altered and depraved by common 
use : which does not happen to the Law-French used 
in England, because it is oftener writ than spoken: 
as to the Latin, all Original and Judicial Writs, all 
Records in the King's Courts of Justice, and some 
Acts of Parliament are penned in that language. 
Wherefore the Laws of England being learned and 
practised in those three several languages, they cannot 
be so well studied in our Universities, where the 
Latin is- mostly in use : but, they are studied in a 
publick manner and place, much more commodious 
and proper for the purpose, than in any University. 
It is situated near the King's Palace at Westminster, 
where the Courts of Law are held, and in which the 
Law- Proceedings are pleaded and argued, and the 
resolutions of the Court, upon cases which arise, are 
given by the Judges, men of gravity and years, well 
read and practised in the laws, and honoured with 
a degree peculiar to them. Here, in Term-Time, 
the students of the law attend in great numbers, as 
it were to public schools, and are there instructed in 
all sorts' of Law-Learning, and in the practice of 
the Courts : the situation of the place, where they 
reside and study, is between Westminster and the 
city of London*, which, as to all necessaries and 

a In the ancient ballad called the London Lyckpenny, written 
in the reign of Henry VI. are related the mortifications and dis- 
tresses 



179 

conveniences of life is the best supplied of any city 
or town in the kingdom : the place of study is not 
in the heart of the city itself, where the great con- 
fluence and multitude of the inhabitants might dis- 
turb them in their studies; but in a private place, 
separate and distinct by itself, in the suburbs, near 
to the Courts of Justice aforesaid, that the students, 
at their leisure, may daily and duly attend, with the 
greatest ease and convenience b . 

tresses of a person who came to London to obtain the redress 
of an injury, without any money in his pocket: he is made 
to relate his adventures, and in the course of them, he gives 
a minute and curious description of the appearance of London, 
and Westminster, at the time when Fortescue lived. 

b The Statute of the 36 Edward III, referred to in the text, 
has a singular recital, " that the king, nobles, and others, who 
have travelled in divers regions and countries, have observed, 
that they are better governed by the laws, being in their own 
tongue." The recital of the 18 Edward III. St. 11, which is 
written in French, contains a most extraordinary complaint of 
the attempts of the King of France, to destroy " the English 
tongue." (Barrington on 1 8 Ediv. III. where see some conjectural 
emendations of the passage; and Barringlon on 36 Edw. III.) 
Fortescue repeats part of a passage from Holcot, in which that 
writer states the Conqueror, from a motive of policy, to have 
effected a material change in the national language, by means of 
an ordinance, made for adopting the French, in public proceed- 
ings, and for its being taught in all the schools. The authority 
of Holcot, which has been generally followed by subsequent 
writers, has been impugned by Mr. Luders, in a learned tract, 
" On the Use of the French Language, in our ancient Laws, and 
Acts of State." And he has collected a multitude of valuable 
particulars, to shew the common use of the Latin, by the Nor- 
mans, as well in their own country, as after their arrival in 
England, and likewise on the occasion of their conquests in 
Sicily. It is certain, that as early as in the time of Edward 
the Confessor, the French language was much prized in this 
Country. And it would seem, that about the time of Henry II, 
the use of it was more general, than at any preceding period, 
among the higher classes of society, whereas the lower orders, 
appear never to have abandoned their vernacular tongue. During 
the interval, of about thirty years, which preceded the accession 
of Henry III, the formation of the English language seems to 
have taken its rise. A version of Wace's poem of Brut, written 
in the reign of Henry II, by one Layamon, a Priest, is supposed 

to 
. M 2 



180 

to exhibit the chrysalis of our language. The earliest English 
instrument, known to exist, is said to bear the date of 1343. 
Rymer contains one of the year 1385. Sir J. Mandeville, about 
1350, has been considered the father of English Prose. In the 
time of Richard II, the English began to supplant the use of 
Freneh, in the elementary instruction of schools, a change which 
has perpetuated the names of the persons who first introduced it. 
(Tyrnihiit's Essay on Chaucer, Ritsoris Dissertation on Romance, 
Warton's History of .English Poetry. Ellis's Specimens of early 
English Poetry, Johnson's Preface to his Dictionary. Verstegan's 
Decayed Intelligence, Hallam's Middle Ages, ch. 9- Turner's 
History of England, Part VI. ch. 1, 2. Madox's Exchequer, p. 
122, 123, and Disquisition on the Romanic, or bastard Latin in 
the Preface to the History of the Exchequer.) Upon this subject, 
the observations of Mr. Luders are valuable, as pointing out the 
difference subsisting between the Norman and French languages, 
hi the eleventh century. With respect to the use of French in 
Parliamentary and legal proceedings, it has been suggested by 
Barrington, that the circumstance of a standing committee in 
Parliament, being -appointed to receive petitions from France, 
might have been the cause of the Parliamentary proceedings 
being usually entered in that tongue, a practice which ceased 
about the time of this Country being dispossessed of its French 
colonies. The first Act in our Statute Book, in the French 
language, is the 51 Hen. Ill"; and Luders remarks, that the 
earliest ordinances both of France and England, promulgated in 
that language, are nearly contemporary. The first instance of 
the use of English, in any parliamentary proceeding, is in the 
36 Hen. III. The challenge of the Crown, by Hen. IV, and his 
thanks after the allowance of his title, are recorded in English, 
which is called his maternal tongue ; and English appears occa- 
sionally in Parliamentary proceedings, during the reigns of Hen. 
IV, and Hen. V. In the reign of Henry VI, the petitions and 
bilk of Parliament are frequently in English, and sometimes 
the answers also : but the Statutes continued to be in Latin and 
French : The last Statute wholly in Latin on record is the 33 
Hen. VI, the last portion of any Statute in Latin, is the 39 Hen. 
VI. c. 2. The publication of Statutes in English, is believed to 
have begun with the commencement of the reign of Hen. VII, 
and at least from the fourth year of Hen. VII, to the present 
time, they have been universally in English. (Report of the 
Committee, for the Inspection of the Public Records. Barrington on 
51 Hen. III.) With respect to the use of French in legal pro- 
ceedings, Blackstone says, that it preceded the use of Latin in 
the entry and enrollment of Pleas : this statement appears to be 
incorrect. (On the Language of Declarations, Tern. Edw. I. 
Edni. IV. Reeves c. 16. 23. On that of the Record, Stephen on 
Pleading, Appx. n. 14. and during the period from Rich. I. to 

Edw. IL 



181 

HLdw. II. the Placitorum Abbreviation The Statute of Edw. III. 
did not apply to the language of records, and the lawyers for 
a long time afterwards continued to take their notes in French, 
and such is mentioned to have been the practice of Lord Keeper 
Guilford, when at the bar. In North's Treatise on the study of 
the law, it is said that the law is " scarcely expressible properly 
in English, and when it is done it must be Francois, or very 
uncouth." Sir P. Yorke, afterwards Lord Hardwicke, in the 
reign of George II, was the first Serjeant that counted in Eng- 
lish. (Wynne's Degree of Serjeant, p. 104. North's Life of Ijyrd 
Keeper Guilford. And see in the Preface to Croke Charles, Sir H. 
Grimston's Apology for not Publishing that Work in " its Native 
Idiom, the proper and peculiar Phrase of the Common Law." 
And see further on the derivation of our legal language and 
forensic usages from the French, Stephen on Pleading, Appx. 
n. 30. 59. Craig. Jus. Feud. lib. i. d. 7.) Whitelock details 
in his Memorials a very learned speech, which was delivered 
on the occasion of the proposition, made to the Commonwealth 
Parliament, for translating all the books of the law, and the 
proceedings of the Courts of Justice, into the English tongue ; 
besides much legal and antiquarian knowledge, it contains 
many sensible remarks on the policy of the measure, and 
concludes with an exhortation to the Commons, for passing the 
bill, expressed in a masterly strain of eloquence. An ordinance 
which was the consequence of this proposition, passed a. n. 1650, 
but was annulled at the Restoration, its expediency however was 
felt and recognized by the legislature of George II. Blackstone 
has questioned the propriety of this alteration in the language of 
our judicial proceedings, and has supported his opinion by some 
arguments which have exposed him to the just censure and 
ridicule of Mr. Bentham. (Fragment on Government.) 

With respect to the vestiges of the French language, preserved 
in some particular instances, mentioned by Fortescue, Madox, 
amongst his arguments, to prove that the Exchequer was an 
institution of the Conqueror, states that most of the solemn and 
emphatic words employed in the business of the Exchequer, are 
of Norman origin, and that most of the terms of the Forest Law, 
used in the Exchequer, are derived from the same source. The 
fact of the general practice of keeping accounts in French, is 
called in question by Luders, who refers to instances, occurring 
in the twelfth century, of accounts being kept in Latin. (And 
see Henry's History, Vol. VI. p. 90.) Barrington in his obser- 
vations on the 51 Hen. Ill, relates several particulars which 
shew the derivation of our terms of sporting, cookery, and 
heraldry, from the French. (See also m the Antiquity of Forests, 
and the Etymology of the word Purlieu, Heme's Cur. Disc. Vol. I. 
p. 118. Vol. II. p. 380. On Ike Hunting of the Britons and Saxons, 
Archceol. Antiq. Soc. Vol. XV.) 



182 



CHAP. XLIX. 



But, my Prince, that the method and form of 
the study of the law may the better appear, I will 
proceed and describe it to you in the best manner 
I can. There belong to it ten lesser inns, and 
sometimes more, which are called the Inns of Chan- 
cery: in each of which there are an hundred students 
at the least; and, in some of them, a far greater 
number, though not constantly residing. The stu- 
dents are, for the most part, young men ; here they 
study the nature of Original and Judicial Writs, 
which are the very first principles of the law a : after 

a Sir E. Coke observes that students seeing the singular use 
of original writs, will, in the beginning of their study, learn 
them, or at least the principal part of them, without book, and 
he points out the advantages resulting from such a practice. 
In several of the prefaces to his reports, he appears particularly 
anxious to refer the antiquity of the writs of the Common Law 
to a period antecedent to the Conquest : Other writers of equal 
or greater authority upon this subject suppose the introduction 
of them to have been coeval with the establishment of the Curia 
Regis, when causes came to be decided before a tribunal, at a 
distance from the litigating parties, which was otherwise in the 
Saxon County Courts. (Hickes's Diss. Epist. p. 8. Madox's Ex- 
ckeq. p. 63. Reeves's History of the Law, c. 2. Stephen on Plead- 
ing, Appx. n. 2.) The great Saxon scholar Hickes speaks with 
much contumely of Coke's learning respecting the times before 
the Conquest, and calls him " in re forensi antiqua minus versa- 
tum," " in patriae suae antiquis consuetudinibus et constitutio- 
nibus avitis hospitem." (Diss. Epist. p. 8. 49.) After the Statute 
of Westminster the second, writs became a part of the study of 
the law. The Masters in Chancery, to whom the business of 
preparing writs had been before confined, gradually relinquished 
all concern in respect of them, and their forms came to be 
settled by lawyers of eminence : by the printing of the Register, 

the 



183 

they have made some progress here, and are more 
advanced in years, they are admitted into the Inns 
of Court, properly so called : of these there are four 
in number. In that which is the least frequented, 
there are about two hundred students. In these 
greater inns a student cannot well be maintained 
under eight and twenty pounds a year b : and, if 
he have a servant to wait on him (as for the most 
part they have) the expence is proportionably more: 
for this reason, the students are sons to persons 
of quality ; those of an inferior rank not being- able 
to bear the expences of maintaining- and educating 
their children in this way. As to the merchants, 
they seldom care to lessen their stock in trade foy 
being- at such large yearly expences. So that there 
is scarce to be found, throughout the kingdom, an 
eminent lawyer, who is not a gentleman by birth 
<ind fortune ; consequently they have a greater re- 
gard for their character and honour than those who 
are bred in another way. There is both in the Inns 
of Court, and the Inns of Chancery, a sort of an 
Academy, or Gymnasium, fit for persons of their 
station ; where they learn singing, and all kinds 

the knowledge of writs was rendered publici jiiris, and they 
formed a most essential part of a lawyer's information, because 
during the prevalence of real actions, recourse was had to the 
learning contained in them at every turn and stop of the pro- 
ceedings. (Concerning Writs, and the Antiquity of the Registrum 
Brevium, Co. Litt. 73. b. Nichols. Eng. Histor. lib. 215. Jehu 
Webb's Case, 8 Rep, Of a register in the time of Hen. II. in 
Coke's possession. Plowd. 7- Barr. on Statulum, Watlice and 
Reeves's History of the Law, Henry VIII, where see a compa- 
rison between the Writs of the printed Register, and those in the 
several antecedent periods of our Law.) 

b In addition to the remarks on the value of money m a 
former page, it is to be noticed, that some useful observations 
on this subject occur in the ninth Chapter of Hallam's Middle 
Ages; this writer considers that sixteen will be a proper 
multiple when we would bring the general value of money, 
in the reign of Henry VI, to our present standard. (And see 
Sir F. Eden's Tables. Lord I jy Melon's Hen. II. , v. 1. p. 470. 
et seq. Bl. Comm. vol. I. p. 173. vol. IV. p. 238. n.) 



184 

of music, dancing* and such other accomplishments 
and diversions (which are called Revels) as are 
suitable to their quality, and such as are usually 
practised at Court. At other times, out of term, 
the greater part apply themselves to the study of 
the law c . Upon festival days, and after the offices 



c The account given by Fortescue of the legal profession 
in the time of Henry VI, has occupied a considerable space in 
the treatises of all the authors, who have written upon the 
subject of legal Antiquities, since his time. The antiquities 
of the Inns of Court, and of Chancery, are the subjects of 
several papers in Heme's Curious Discourses; and Dugdale 
has investigated them in his Origines Juridiciales. It may be 
collected, that societies of lawyers began to have permanent 
residences soon after the Court of Common Pleas was directed 
to be held in a fixed place, to which circumstance, or to the 
abolition of the law schools in London, in the nineteenth year 
of Henry III, the institution of these societies is ascribed, by 
Blackstone. Lawyers were established in the Temple, in the 
reign of Edward III, when they held the place as the tenants 
of the Hospitalers, on whom the possession of the estates of the 
Knights Templars had devolved. An idea of the nature of 
the studies anciently pursued in the Inns of Court, may be 
formed from the very minute account which is given in 
Dugdale, of the exercises, mootings, and readings : and many 
details of an interesting nature, upon the same subject, are 
found in North's Life of Lord Keeper Guilford : the biographer 
supposes his Lordship to have been one of the last persons 
who read in the Temple in the ancient spirit of the institution, 
and complains that the exercise had, since his time, dwindled 
into a revenue; which circumstance he ascribes to the ex- 
travagant expences that the readers formerly incurred in the 
leasts, which it was incumbent on them to give. Coke describes 
the nature of ancient readings, which he laments had greatly 
degenerated in his day ; he says they had become rather riddles 
than lectures, and he compares the readers to lapwings, who 
seem to be nearest their nests when they are farthest from them, 
and whose study was to find nice evasions out of the Statute. 
(Co. Litt. 280. a. For some interesting circumstances connected 
with the readings of Sir T. More, Wordsworth's Eccl. Biog. ; 
— respecting Bagshawe's Reading, Tern. Car. 1. Whitel. Mem. 
p. 31, For directions upon the subject of Readings, Bacons 
Introduction to his Reading upon the Statute of Uses. For a 
curious and valuable specimen of an Ancient Reading, Callis 
upon Sewers.) 

The 



185 

« 

of the church are over, they employ themselves in 
the study of sacred and prophane history: here 
every thing which is good and virtuous is to be 
learned: all vice is discouraged and banished. So 
that knights, barons, and the greatest nobility of 
the kingdom, often place their children in those 
Inns of Court; not so much to make the laws their 
study, much less to live by the profession (having 
large patrimonies of their own) but to form their 
manners and to preserve them from the contagion 
of vice. The discipline is so excellent, that there 
is scarce ever known to be any picques or differ- 
ences, any bickerings or disturbances amongst 



The most minute details are furnished by Dugdale, respect- 
ing the ancient Revels, grand Christmasses, Banqueting Nights, 
and amusements of the Inns of Courts, and the comic personages 
who acted conspicuous parts on these occasions, as 1 the Lord of 
Misrule, the King of Cocknies, and Jack Straw, together with the 
master of the game, who was appointed by the Lord Chancellor, 
after hearing a plausible speech in his favor from the Common 
Serjeant, and who introduced a Fox and a Cat to be killed 
by Dogs beneath the fire. As to the lighter accomplishments, 
which Fortescue mentions to have been taught in the Inns of 
Court, Sir Christopher Hatton first obtained Queen Elizabeth's 
favor, by his appearance in a masque prepared by the lawyers. 
(Naunton's Fragmenta Regalia, and see Gray's Long Story.) 
Saunders excelled on the harpsichord, and Lord Keeper 
Guilford was a perfect musician. We read that in the reign 
of James, barristers were put out of Commons by decimation, 
for the offence of neglecting to dance before the Judges. Sir 
J. Davis wrote a composition in lyric verse, entitled " Orchestra, 
or a poem expressing the antiquity and excellency of dancing." 
Lord Bacon, who composed an essay upon the subject of 
masques, regrets in his letters the failure of a project, to prepare 
a joint masque by the four Inns of Court, in honor of Queen 
Elizabeth. A masque, the result of the united exertions of 
these learned societies, was, however, brought about in the 
reign of Charles I. Among the Committee for arranging this 
splendid pageant, will be seen the names of Selden, Whitelock, 
Hyde, Finch, Herbert, Noy ; and it is said, by the historian, to 
have been a pleasure to them. The animated description which 
is given of this masque in Whitelock's Memorials, will always 
be read with great interest, as affording a characteristic ex- 
hibition of the manners of the age. 



186 

them. The only way they have of punishing de- 
linquents, is by expelling" them the society: which 
punishment they dread more than criminals do 
imprisonment and irons: for he who is expelled 
out of one society, is never taken in by any of the 
other. Whence it happens, that there is a constant 
harmony amongst them, the greatest friendship and a 
general freedom of conversation. I need not be parti- 
cular in describing the manner and method how the 
laws are studied in those places, since your Highness 
is never like to be a student there. But, I may say 
in the general, that it is pleasant, excellently well 
adapted for proficiency, and every way worthy of 
your esteem and encouragement. One thing more 
I will beg leave to observe, viz. that neither at 
Orleans, where both the Canon and Civil Laws 
are professed and studied; and whither students 
resort from all parts; neither at Angiers, Caen, 
nor any other University in France (Paris ex- 
cepted) are there so many students, who have past 
their minority, as in' our Inns of Court, where the 
natives only are admitted d . 

d Great caution seems formerly to have been observed in 
admitting persons as members of the Inns of Court, whose 
rank in society, and whose education was not a guarantee for 
the propriety of their conduct. There is extant an order of 
King James, signed by Sir. E. Coke, Lord Bacon and others, 
that none but gentlemen by descent should be received. 
(Dugdale's Origines, p. 31 6.) The study and practice of the 
law may in themselves be considered as materially influencing 
the intellectual, the moral, and political character of the in- 
dividual. This is a subject which does not admit of being more 
than merely adverted to, in the compass of a note. It may 
however be mentioned, that Lord Bacon recommends the study 
of the law as a remedy for some particular defects in the mental 
powers : and Burke speaks of it as a science which does more 
to quicken and invigorate the understanding, than all the other 
kinds of learning put together. — And if it be on some occasions 
the duty of a Barrister to advocate a cause which in his judg- 
ment is not founded upon right, or to advance arguments of 
the solidity of which he is not persuaded, yet such a line of 
conduct will not, although it be examined according to the 

strictest 



187 

strictest philosophical principles, appear repugnant to the moral 
feelings. (For the opinions of the Stoic Pancetius and Cicero, 
Cic. de Off lib. ii. c. 14. and see Preface to Sir. J. Davis's 
Reports. For an indictment against a Counsel charged with 
taking fees on both sides of a cause, Tremaine P. C. p. 26l. 
and Stat. West. I. c. 9- prohibition against Serjeants at- 
tempting "pur enginer le Court, ou la partie.) — In examining 
the political conduct of lawyers, it will be observed, that as 
their professional studies lead them to take a near view of 
the excellencies of the Constitution, so they have been ac- 
tuated by a powerful impulse to foster and vindicate it. 
Accordingly, this Country is deeply indebted to the members 
of the legal profession, for the preservation of its most valued 
liberties. Bracton and Fortescue are the earliest authorities 
in favor of our national freedom. The first conspicuous in- 
stance of a Commoner opposing in Parliament the arbitrary 
will of the Crown, was afforded by Sir Thomas More. And 
in the next reign, when Wolsey came with great mag- 
nificence to the House of Commons, in order to overawe the 
members into granting a parliamentary aid, he met with an 
inflexible resistance from the same intrepid lawyer. (Words- 
worth's Ecclesiastical Biography. Ellis's Original Letters, Vol. I. 
p. 220.) How much of the wisdom with which the petition 
of Right was framed, and of the resolution with which it was 
forwarded, is owing to the learning, sagacity, and intrepidity, of 
Coke and of Selden. How great a part of the merit of the 
Bill of Rights, and of the spirited publications which prepared 
the minds of men for the Revolution, is due to Lord Somers. 
The Restoration might have been a national blessing, if the 
limitations upon the power of the Crown, which were pro- 
posed by Sir M. Hale, had been appreciated and enforced. 
An attempt was made in the time of the Commonwealth, 
to exclude lawyers from sitting in the House of Commons. 
A similar project had been contrived in the reign of Edward III, 
but it does not appear to have been acted upon until that of 
Henry IV, and the Parliament in which it was adopted has been 
called in derision the " Parliamentum indoctum," or the " lack- 
learning Parliament." Whitelock has related, in his Memorials, 
a distinguished speech, which was delivered on the occasion 
of the debate upon this subject, tending to shew " that those 
in power had most reason to be displeased with this profession, 
as a bridle to their power." (Whitel. Mem. p. 415. 4 Inst. 48. 
And see Introduction to Brodie's British Empire, p. 63. upon a 
remarkable mistake of Prynne and Whitelock, in citing a passage 
from Walsingham, respecting the " Parliamentum indoctum."') — 
Hume has made a reflection, how much the history of this 
Country is indebted to four great men, who held the highest 
stations in the law, More, Bacon, Clarendon, Whitelock. One 

of 



188 

of which number stands pre-eminent above the rest of mankind, 
whether in the annals of ancient or modern philosophy : whilst 
the cultivators of literature and the arts, will always revere, 
in Sir Thomas More, the bosom friend of Erasmus, and the 
patron of Holbein ; the man on whom was passed the merited 
eulogium — " Pectus omni nive candidius, ingenium quale Anglia 
nee habuit unquam, nee habitura est, alioquin nequaquam in- 
felicium ingeniorum parens." (Erasm. lib. 29- Epist. 42.) The 
literary taste of this Country derived no unimportant benefit 
from Lord Somers, when he liberally supplied Addison with 
the means of completing his education, and enabled him to 
make the tour of Italy. (And further on Lord Somers s Character, 
Walpole's Noble Authors, Addison's Freeholder, No. SQ. Swift's 
Dedication to the Tale of a Tub, also the Four Last Years of 
Queen Anne. Hickes's Diss. Epist. on the Saxon Etymology of the 
word Somers, " maximum et clarissimum.) The muse of Pope 
never speaks with more feeling to the heart, than when ex- 
cited by the kindred genius of his Templar friend, whose 
judicial and senatorial talents, and whose "hundred arts re- 
fined" were equally " known and honored." — Doubtless it would 
be easy to point out several defects in the mental qualifications 
of lawyers which may fairly be considered as resulting from 
their professional studies and habits. This is the natural con- 
sequence of the mind becoming addicted to any one particu- 
lar pursuit ; and as such it engaged the attention of Lord Bacon 
in his celebrated work on the advancement of learning, in 
which he treats of these impediments to knowledge under 
the appellation of "idola tribus." Moreover the allurements 
of profit and ambition make it more necessary for an English 
Barrister, than for a person placed in any other class of society, 
to regard their seductive influence in the light in which the 
great philosopher, whose writings have just been referred to, 
has viewed them, that they are "the golden ball thrown 
before Atalanta, which while she goeth aside, and stoopeth 
to take up, the race is hindered." 



189 



CHAP. L. 



But, my Prince, since you are so desirous to 
know, wherefore, in the Laws of England, the 
degrees of Bachelor and Doctor are not conferred, 
as in the professions of the Canon and Civil Law 
in our Universities; I would give you to understand, 
that though in our Inns of Court there be no de- 
grees which bear those titles ; yet there is in them 
conferred a degree, or rather an Honorary Estate, 
no less celebrated and solemn than that of Doctor, 
which is called the degree of a Serjeant at Law, it 
is conferred in the following manner. 

The Lord Chief Justice of the Common Pleas, 
by and with the advice and consent of all the Judges, 
is wont to pitch upon, as often as he sees fitting, 
seven or eight of the discreeter persons, such as 
have made the greatest proficiency in the general 
study of the laws, and whom they judge best qua- 
lified. The manner is, to deliver in their names 
in writing to the Lord High Chancellor of England; 
who, in virtue of the King's Writ, shall forthwith 
command every one of the persons so pitched upon, 
that he be before the King, at a day certain, to take 
upon him the state and degree of a Serjeant at Law, 
under a great penalty, in every one of the said 
Writs specified and limited. 

At which day, the parties summoned and ap- 
pearing, each of them shall be sworn upon the holy 
Gospels, that he will be ready, at a further day and 
place to be appointed, to take upon him the state 



190 

and degree of a Serjeant at Law, and that he shall, 
at the same time, give gold, as, according to the 
custom of the realm, has in such cases been used 
and accustomed to be done. How each is to behave 
and demean himself, the particulars of the ceremony, 
and manner how these estates and degrees are to 
be conferred and received, I forbear to insert; it 
will take up a larger description than consists with 
such a succinct discourse : besides, at other times, 
I have talked it over to you in our common con- 
versation. But I desire that you should know, that, 
at the time and place appointed, those who are so 
chosen, hold a sumptuous feast, like that at a Coro- 
nation, which is to continue for seven days together: 
neither shall any one of the new-created Serjeants 
be at a less expence, suitable to the solemnity of 
his creation, than two hundred and sixty pounds, 
and upwards, whereby the expences in the whole, 
which the eight will be at, will exceed three 
thousand two hundred marks. — To make up which, 
one article is, every one shall make presents of 
gold rings to the value, in the whole, of forty 
pounds (at the least) English money. I very well 
remember, when I took upon me the state and 
degree of a Serjeant at Law, that my bill for gold 
rings came to fifty pounds. Each Serjeant, at the 
time of his creation, gives to every Prince of the 
Blood, to every Duke, and to each Archbishop, 
who shall be present at the solemnity, to the Lord 
High Chancellor, and to the Treasurer of England; 
to each a ring of the value of twenty-six shillings and 
eight pence ; to every Earl and Bishop, to the Keeper 
of the Privy Seal, to each Chief Justice, to the Chief 
Baron of the King's Exchequer, a ring worth 
twenty shillings ; and to every other Lord of Par- 
liament, to every Abbot and to every Prelate of 
distinction, to every worshipful Knight, then and 
there present, to the Master of the Rolls, and to 
every Justice, a ring to the value of one mark; 



191 

to each Baron of the Exchequer, to the Chamber- 
lains, and to all the great men at Court then in 
waiting on the King, rings of a less value, in pro- 
portion to their rank and quality : so that there will 
not be the meanest clerk, especially in the Court 
of Common Pleas, but that he will receive a ring 
convenient for his degree. Besides, they usually 
make presents of rings to several of their friends 
and acquaintance. They give also liveries of cloth. 
of the same piece and colour, which are distributed 
in great quantities, not only to their menial ser- 
vants, but to several others, their friends and 
acquaintance, who attended and waited on the 
solemnity of their creation; wherefore, though in 
the Universities, they who are advanced to the 
degree of Doctors are at no small expence at their 
creation, in giving round caps, and other con- 
siderable presents : yet they do not give any gold, 
or presents of like value; neither are at any ex- 
pences in proportion with a Serjeant at Law. There 
is not, in any other kingdom or state, any particular 
degree conferred on the practisers of the law as 
such; unless it be in the kingdom of England. 
Neither does it happen, that in any other country, 
an Advocate enriches himself so much by his prac- 
tice a's a Serjeant at Law. No one, be he never 
so well read and practised in the laws, can be made 
a Judge in the Courts of King's Bench, or the 
Common Pleas, which are the supreme ordinary 
courts of the kingdom, unless he be first called to 
be a Serjeant at Law : neither is any one, beside 
a Serjeant, permitted to plead in the Court of 
Common Pleas, where all real actions are pleaded : 
wherefore, to this day, no one hath been advanced 
to the state and degree of a Serjeant at Law, till 
he hath been first a Student, and a Barrister, full 
sixteen years : every Serjeant wears in Court a 
white silk coif, which is a badge that they are 
graduates in law, and is the chief ensign of habit 



192 

with which Serjeants at Law are distinguished at 
their creation. Neither shall a Judge, or a Ser- 
jeant at Law, take off the said coif though he be 
in the Royal Presence and talking- with the King's 
Majesty. So that you will easily believe, most 
excellent Prince, that those laws which are so 
honoured and distinguished beyond the Civil Laws, 
or those of any other kingdom whatsoever, and the 
profession whereof is attended with so much solem- 
nity and magnificence, are in themselves exceeding- 
valuable, excellent and sublime, full of knowledge, 
equity and wisdom 3 . 

a In Fleta, the practisers of the law are enumerated under 
the classes of Servientes, Narratores, Attornati, and Apprenticii. 
They are ranked under various other denominations by sub- 
sequent writers, and there has been a difference of opinion 
respecting the meaning of several of the distinctions. (Reeves's 
History of the Law, ch. 11, 30. Preface to the third Report. 
On a supposed distinction between Narratores and Servientes, 
Reeves, ch. 11. between Barristers and Utter-barristers, Wynne's 
Eunomus. Blount, Reeves, ch. 30. On the meaning of the term 
Apprentice, and the difference between Apprenticii ad Legem, and 
ad, Barras, Barrington on 20 Rich. II. Dugdale's Origi7ies 143. 
Mitchell's Case, Atk. Rep. vol. II. Somners's Gloss, ad X. Scrip- 
tores. On the Antiquity of Advocates, Stephen on Pleading, 
Appx. n. 8.) 

The degree of Serjeant, which is the particular subject of For- 
tescue's remarks in this chapter, has been exalted by every cir- 
cumstance with which erudition or eloquence could ennoble it, in 
a speech delivered by Whitelock, and which is related in his 
memorials. The subject is treated of in the preface to the tenth 
report, and it has received great embellishment from the orations 
which have been spoken at different times on the occasion of 
the creation of Serjeants. (See Wynne, on the Degree of Serjeant, 
p. 109. 65.) A writ for the call of Serjeants at law was con- 
tained in the MSS. Registrum Brevium. Serjeants are noticed 
by Bracton, and the title occurs in our records, as early as the 
time of Edward the first. Whitelock mentions that a Serjeant 
is addressed in the plural number in his writ, an honor which 
does not appertain even to Sheriffs. In Popham's Reports is 
contained a remarkable exhortation, delivered by the Chief 
Justice to the newly created Serjeants, in which a sage ad- 
monition is drawn from every minute peculiarity of their dress. 
The research of legal Antiquarians has preserved a multitude 
of curious facts, in addition to the particulars in the text, re- 
specting the rings, mottos, feasts, and other matters connected 

with 



193 

with the ancient degree of Serjeant at law. (Wynne's Serjeant 
at Law, p. 75, Mottos, p. 141, Rings, p. 114, Feasts, Dug- 
dale's Origines, p. 41, et seq. Spelman's Gloss, v. Serviens ad 
legem. Mirror, ch. Des Conteurs et des Loieurs. Barr. on 
14 Edw. III. Wynne's Eunomus. Spelman, Gloss, v. Coif a. 
On the Pillars of Parvle's Dugd. Orig. p. 117- Whitel. Mem. 
p. 348. 9 Mod. p. 9, and Life of Holt, for the Remonstrance 
of Keeling, C. J. upon the Diminution in the weight of Rings. 
On the Compulsory appointment of Serjeants, Tern. Henry V, 
Reeves, c. 25. On the Removal of Dudley from the degree of 
Serjeant, Biog. Britan. In Strult's Antiq. a drawing of a Serjeant 
in the Coif and Robes of the time of Hen. VII.) 



N 



194 



CHAP. LI 



That you may likewise know the estate of the 
Judges, as well as of the Serjeants at Law, I will, 
in the best manner I can, lay before you the method 
of their appointment, creation, and the nature of 
their office. There are usually in the Court of 
Common Pleas Jive Judges, six at the most ; in the 
Court of King's Bench four, and sometimes Jive : 
when any one of them dies, resigns, or is super- 
seded, the King, with the advice of his council, 
makes choice of one of the Serjeants at Law, whom 
he constitutes a Judge, by his Letters Patents, in 
the room of the Judge so deceased, resigning or 
superseded : which done, the Lord High Chancellor 
of England shall come into the Court where such 
vacancy is, bringing in his hand the said Letters 
Patents; when sitting on the bench, together with 
the Judges of the Court, he introduces the Serjeant 
who is so appointed to be a Judge; to whom, in 
open Court, he shall notify the King's pleasure 
concerning his succession to the vacant office, and 
shall cause to be read in publick the said Letters 
Patents : after which, the Master of the Rolls shall 
read to him the oath of office ; when he is duly 
sworn into his said office, the Chancellor shall give 
into his hands the King's Letters Patents, and the 
Lord Chief Justice of the Court shall assign him 
his place where he is to sit, and makes him sit down 
in it. But you must know, my Prince, that the 
Judge, amongst other parts of his oath, is to swear, 



195 

that he shall do equal law and execution of right 
to all the King's subjects, rich and poor, without 
having regard to any person. Neither shall he 
delay any person of common right, for the letters of 
the King, or of any other person, nor for any other 
cause, though the King by his express directions, 
or personal commands, should endeavour to in- 
fluence and persuade the contrary. He shall also 
swear, that he shall not take by himself, or by 
any other, privily, nor apart, any gift or reward 
of gold, or of silver, nor of any other thing, the 
which might turn him to profit, unless it be meat 
or drink, and that of little value, of any man that 
shall have any plea, or process, depending before 
him, and that he shall take no fees, as long as he 
be Justice, nor robe of any person, great or small, 
in any case, but of the King himself. You are 
to know moreover, that the Judge so created is 
not to make any solemn entertainment, or be at 
any extraordinary expence upon his accession to 
his office and dignity ; because it is no degree in 
law, but only an office and a branch of magistracy, 
determinable on the King's good pleasure. How- 
ever, from thenceforth, he changes his habit in 
some few particulars, but not in all : for when 
only a Serjeant at Law, he is clothed in a long 
robe, not unlike the sacerdotal habit, with a. furred 
cape about his shoulders, and an hood over it, with 
two labels or tippets : such as the Doctors of Law 
use in some Universities, with a coif as is above 
described. But after he is made a Judge, instead 
of the hood he shall be habited with a cloak, fasten- 
ed upon his right shoulder; he still retains the 
other ornaments of a Serjeant, with this ex- 
ception, that a Judge shall not use a party-coloured 
habit, as the Serjeants do, and his cape is furred 
with minever, whereas the Serjeant's cape is always 
furred with white lamb; which sort of habit, when 
you come in power, I could wish your Highness 

N 2 



196 

would make a little more ornamental, in honour of 
the laws, and also of your Government. You are 
to know further, that the Judges of England do 
not sit in the King's Courts above three hours in the 
day, that is, from eight in the morning till eleven. 
The Courts are not open in the afternoon. The 
suiters of the Court betake themselves to the pervise, 
and other places, to advise with the Serjeants at 
Law, and other their counsel, about their affairs. 
The Judges when they have taken their refresh- 
ments spend the rest of the day in the study of 
the laws, reading of the Holy Scriptures, and other 
innocent amusements, at their pleasure: it seems 
rather a life of contemplation than of much action : 
their time is spent in this manner, free from care 
and worldly avocations. Nor was it ever found 
that any of them has been corrupted with gifts, 
or bribes. And it has been observed, as an es- 
pecial dispensation of Providence, that they have 
been happy in leaving behind them immediate 
descendants in a right line. " Thus is the man 
blessed that feareth the Lord." And I think it is 
no less a peculiar blessing, that from amongst the 
Judges and their offspring, [more Peers and great 
men of the realm have risen, than from any other 
profession or estate of men whatsoever who have 
rendered themselves wealthy, illustrious and noble 
by their own application, parts and industry. Al- 
though the merchants are more in number by some 
thousands; and some of them excel in riches all 
the Judges put together. This can never be as- 
cribed to mere chance or fortune, which is nothing; 
but ought to be resolved (I think) into the peculiar 
blessing of Almighty God, who, by his Prophet, 
hath declared, that " the generation of the upright 
shall be blessed." And elsewhere the Prophet, 
speaking of the righteous, says, " their children 
shall be blessed." Wherefore, my Prince, be a 
Jover of Justice, which maketh rich and honourable 



197 

which perpetuates the generation of those who love 
her: in order to this, be a zealous lover of the Law, 
which is the parent of Justice, that it may be said, 
and verified of you, which is written of the righteous, 
" Their seed shall endure for ever 3 ." 

* The Appendix to Heywood's Vindication of Fox's His- 
tory contains an historical account of the tenure by which 
Judges held their offices under the house of Stuart, together 
with a list of most of those who were removed for political 
causes. Several particulars, respecting the ancient patents of 
Judges are mentioned in the notes of the Earl of Hardwicke, 
which he prepared on the occasion of moving the address 
upon the speech of His Majesty George III, respecting the 
independence of the Judges. {Pari. Hist. Vol. XV. and see 
Speaker Onslow's Note to Burnet, Vol. II. p. 12.) And many 
interesting facts have been collected respecting the antiquity 
of Judges, their number at different periods, their dresses, 
salaries, and other facts connected with their appointment. 
(Dugdale's Origines, 37, 38, 39, 40. Reeves's History of the 
Law, c. 8, 11, 16, 17, 25, 27, 30. Bl. Comm. Vol. III. p. 40. 
Whitelocke's Memorials, p. 344, 392. Archceol. Antiq. Soc. 
Vol. XVI, Petition in the time of Henry VI, by a Judge, for 
an Increase of Salary. Selden's Titles of Honor, Part II. c. 5, 
concerning the Collar of SS. D' Israelis Cur. of Lit. 2 Series, 
Vol. I. p. 298, Anecdote respecting the Collar of Sir E. Coke, 
from the Shane Manuscripts. On the Title of Capitalis Anglian 
Justiciarius, assumed by Sir. E. Coke, Spelman, Gloss, v. Jus- 
ticiarius.) In many of the old reports, the resolutions of the 
Judges are said to have been made " ad mensam," sometimes 
" after dinner at Serjeants' Inn." The Pervyse is mentioned 
in Chaucer, 

A Serjeant of the law both ware and wise 
That often had yben at the Porvyse. 

Prol. Cant. Tales. 

Selden considers the term to have an Oxford origin, being 
a corruption cf Parvas, a name by which the scholars' after- 
noon exercises were called, to distinguish them from the 
greater exercises of the Regent Masters. (See also Spelman, v. 
Parvce. On the Pervyse of Pawle's, Reeves, c. 30, From a 
Manuscript of the time of Hen. VIII.) In the Preface to the 
second Report, Coke descants on the prosperity of families who 
have risen from the profession of the law : and he there refers 
to a passage of Scripture which is cited by Fortescue. 
(And see Philipps's Grandeur of the Law. Popham^. Bacon's 
Works, Speech on taking his place in Chancery. Lord Thurlow's 

Reply 



198 

Reply to the Duke of Grafton, in Butler's Reminiscences. See 
also concerning the dignity of Peerage, as connected with the 
situation of the Chief Justices of the King's Bench, and qf the 
Pleas, considerations on the Law and Lawyers, published a. d. 
1788.) 

The History of this Country unhappily affords several ex- 
ceptions to the encomium passed by Fortescue upon the inviolate 
integrity of the Bench. The ancient book, entitled the Mirror 
of Justices, contains many early examples of Judicial delin- 
quency. And the National Justice has fallen with merited 
severity upon the Judges of Edward I, and of Richard II, upon 
Thorpe, Dudley, and Empson, Siroggs and Jeffries. (See the 
Speech of the Archbishop of Canterbury upon the Judges of 
Edward I, annexed to the Tract called " The Security of English- 
men's Lives." 2 Inst, " St. de Judaismo." 3 Inst. " Judicium de 
corrupto judice." And Lord Somers on Grand Juries, p. 223, 
et seq. On Judicial Bribery, 2 Inst. 145, et seq. Selden's Diss, ad 
Fletam, " on the name qf Fleta." On the Judges qf Rich. II. Petyt. 
Jus. Pari. p. 182, 3 Inst. 22. Barrington on 20 Rich. II. Respecting 
Jeffries, Sheffield, D. qf Buckinghamshire's Thoughts on the Revolu- 
tion. Concerning the Judges of Edw. VI; Burnet on the Reformation, 
Vol. II. K. Edw. Rem. p. 72. King Edw. Journal, ibid. p. 55, 56. 
Latimer's Sermons before the King. Paston Letters, Vol. III. Lett. 2. 
and see the State Trials.) Lord Bacon says that Henry VII. used 
to boast of governing England by his laws, and his laws by his 
lawyers : And Andrew Marvel exclaims with great truth against 
the Judges appointed by the Stuarts, " that what French 
counsel, what standing forces, what parliamentary bribes, what 
national oaths, and all the other machinations of wicked men 
had not been able to effect, was more compendiously acted by 
twelve men in scarlet." It would have been gratifying, if 
history had not recorded even a solitary instance of judicial 
corruption, occurring since the Revolution : and every admirer 
of genius, every friend to the advancement of science, and the 
improvement of rational man, must deeply lament to find the 
name of Bacon in the list of Judges who have betrayed the 
public confidence. The moral lesson which ought to be derived 
from his fall, he has himself read to us. " Hereafter," he says, 
in his speech to the Peers, " the greatness of a Judge or magis- 
tate, shall be no sanctuary or protection of guiltiness, which, 
in a few words, is the beginning of a golden world : the next 
is, that after this example, it is like that Judges will fly from 
any thing that is in the likeness of corruption, though it were 
at a great distance, as from a serpent, which tendeth to the 
purging of Courts of Justice, and the reducing them to their 
true honor and splendor, and in these points God is my witness 
that, though it may be my fortune to be an anvil whereupon 
these good effects are beaten and wrought, I take no small 

comfort." 



199 

comfort." (Hargr. St. Tr. Vol.11, and see Lord Bacon' s numerous 
Letters respecting his own case, also North American Review, 
No. 39, and particularly respecting the inducements held out to 
Lord Bacon by King James, to prevail upon him to waive his 
defence, a piece called an Abridgment of Bacon's Philosophical 
Theory, in the Appendix of a work entitled Mineral Productions, 
written by Bushel, a person in Lord Bacon's service, and cited in 
the American Review.) It is consoling to turn from this me- 
lancholy example of human frailty in the wisest and greatest 
of mankind, to a venerable list of English Judges, who have 
left behind them the brightest reputation for excellence, in every 
human virtue. At the head of these illustrious characters, stands 
Sir Thomas More, conspicuous for his scrupulous anxiety to 
avoid whatever might wear the least semblance of a bribe. 
Neither has posterity held in less honor the name of Sir Matthew 
Hale, distinguished for the high independence of his public life, 
and his irreproachable integrity during the worst of times ; who 
kept the tribunals of justice, over which he presided, undefined, 
under the government of a flagitious King, and of a tyrannical 
Commonwealth. 

The perfect judicial character has been sketched more than 
once, by the hand of a master. Lord Bacon, in his Essay on 
Judicature, considers the duties of a Judge with reference to the 
parties that sue, the advocates that plead, the clerks and ministers 
of Justice underneath them, and the sovereign State above 
them. In a speech to Justice Hutton, on his being called 
to be one of the Judges of the Common Pleas, many admirable 
rules are laid down for the direction of his conduct. And in a 
letter which Lord Bacon wrote to the Duke of Buckingham, and 
which is published in the Cabala, he communicates some va- 
luable remarks respecting the selecting of Judges. Neither is 
the portraiture of the judicial character described in a more 
degenerate tone of feeling by Lord Commissioner Whitelock, 
in his speeches to the parliamentary Judges, during the time 
of the Commonwealth. (Whitel. Mem. p. 344, 392. See also 
Lord Bacon's Speeches to Sir J. Denham, and to Sir W. Jones, 
and to the Judges before the Summer Circuit ; and see Hobbes's 
Leviathan, c. 26. Preface to the fourth Report. Letter of 
Lord Burleigh on the Choice of Judges, Peck's Desid. Cur. 
Vol. I. p. 182. Moore's Rep. p. 11 6, Chancellor Bromley's 
Opinion on the Requisites to be observed by Judges in Judgments 
on Demurrers, and Trials by Verdict. Speaker Onslow's Opinion 
of Lively Judges, Burnet, Vol. V. p. 432.) A few traits may 
here be mentioned : Lord Bacon says, " if any one sue to be 
made a Judge, for my own part, I should suspect him." " Let 
not a Judge meet a cause half way, nor give occasion to the 
party to say, his counsel or proofs were not\heard." Judge 
Hutton is advised to be "a light to jurors to open their eyes, 
but not a guide to lead them by the noses ; that he should not 

affect 



200 

affect pregnancy and expedition, by an impatient and catching' 
hearing of the Counsellors at the bar." So, in the Essay on Judi- 
cature, Lord Bacon says, " patience and gravity of hearing is an 
essential part of Justice, and an overspeaking Judge is no well- 
tuned cymbal : it is no grace to a Judge first to find that which 
he might have heard in due time from the bar; or to shew 
quickness of conceit in cutting off evidence or counsel too short, 
or to prevent information by questions, although pertinent. 
Judges ought to be more learned than witty, more reverend 
than plausible, more advised than confident. Above all things, 
integrity is their portion and proper virtue." In a speech 
to the Judges, previous to the circuits, Lord Bacon declares that 
" a popular Judge is a deformed thing, and plaudites are fitter for 
players than for magistrates." In the letter in the Cabala, it is 
said that " an ignorant man cannot, a coward dare not, be a good 
Judge." An examination of the references which have been 
noticed, will not fail to convince the reader of the very dif- 
ferent, perhaps the contrasted talents, which distinguish a 
favorite advocate, and a great Judge. Churchill has drawn a 
picture no less just than spirited, of that odious character, an 
advocate on the Bench. 



" Who may enlarge, retrench, 



Create and uncreate, and on the Bench 

With winks, smiles, nods, and such like paltry arts 

May work and worm into a Jury's hearts: 

Or baffled there, may, turbulent of soul, 

Cramp their high office and their rights controul. 

Who may, though Judge, turn advocate at large, 

And deal replies out by the way of charge ; 

Making interpretation all the way 

In spite of facts his wicked will obey. 

And leaving law without the least defence, 

May damn his conscience to approve his sense." 

The demeanor of a Judge off the Bench, and in the circles 
of private life, is subject to the same observations which Bolin- 
broke has made upon a patriot King, when not in the immediate 
exercise of his august functions. This part of the Judicial 
character has been touched upon, with great felicity, by that 
distinguished Judge Sir H. Grimston, when, with a view to 
pass a high panegyric upon his deceased friend and preceptor 
Croke, he applies to him a passage from Tacitus, in which that 
historian describes the manners of Agricola, " Tempora curarum 
remissionumque divisa; ubi conventus ac judicia poscerent, 
gravis, intentus, severus, et saepius misericors: ubi officio satis- 
factum, nulla ultra potestatis persona ; tristitiam et arrogantiam 
exuerat ; nee illi, quod est rarissimum, aut facilitas auctoritatem, 
aut severitas amorem diminuit." 



201 



CHAP. L1I. 



Prince. There remains but one thing, my 
Chancellor, to be cleared up, which makes me 
hesitate, and gives me disgust ; if you can satisfy 
my doubts in this particular, I will cease to im- 
portune you with any more queries. It is objected, 
that the Laws of England admit of great delays 
in the course of their proceedings, beyond what 
the laws of any other country allow of: this is 
not only an obstruction to Justice but often an in- 
supportable expence to the parties who are at law; 
especially in such actions where the Demandant is 
not entitled to his damages. 






202 



CHAP. LIIL 



Chancellor. In personal actions, which do not 
arise within the cities and trading towns (where 
they proceed according to usages and liberties of 
their own) the proceedings are in the ordinary way. 
Though they admit of great delays, yet they are 
not so excessive. Indeed in cities and towns,, espe- 
cially when the necessity of the case so requires, 
the process is speedy, as it is likewise in other parts 
of the world. But neither yet are the proceedings 
hurried on too fast (as it sometimes happens in other 
countries) by means whereof one or other of the 
parties is a sufferer. In real actions, almost every 
where, the process goes on slow and tedious ; but 
in England it is more expeditious. There are in 
France, in the Supreme Court of Parliament, some 
causes, which have been depending upwards of 
thirty years. I myself know a case of appeal pro- 
secuted in the said Court, which has been depend- 
ing now these ten years, and it is likely will be 
so for ten years more before it can be decided. 
While lately at Paris, my host shewed me his 
process in writing, which had been before the 
Court of Parliament for eight years, for four French 
Sols rent, which, of our money, makes but eight 
pence, and he had no prospect of obtaining judg- 
ment in less than eight years more. I have known 
other cases of the same nature : and for what ap- 
pears to me, the Laws of England do not admit 
of so great delays as the Laws of France. But 
it is really necessary there should be delays in 



203 

legal proceedings, provided they be not too dilatory 
and tedious. By these means the parties, in par- 
ticular the party prosecuted, is better provided with 
his proper defence, and advice of counsel, which 
otherwise neither of them could be, either to pro- 
secute or defend. " Judgment is never so safe 
when the process is hurried on." I remember once 
at an assizes and gaol-delivery at Salisbury, that 
I saw a woman indicted for the death of her hus- 
band, within the year : she was found guilty, 
and burnt for the same : in this case the Judge 
of assize, after the whole proceedings before him 
were over, might have respited the execution of 
the woman, even after the expiration of the year. 
At a subsequent assizes 1 saw a servant of the 
man who was so killed, tried and convicted before 
the same Judge for the same murder : who made 
an ample public confession that he was the only 
person who was guilty of the said fact, and that 
his mistress, who had been executed, was entirely 
innocent of it : wherefore he was drawn and hanged, 
and at the time and place of his execution he 
lamented the case of his poor mistress, upon ac- 
count of her innocence, and her being in no wise 
privy to her husband's death. The fact being 
thus, how may we suppose the Judge to be affected 
with a sense of conscience and remorse for being 
so hasty in awarding judgment of execution, when 
it was in his power to have stayed, for some time, 
further process against her : he often owned to me, 
with concern, that he should never be able to 
satisfy it to his conscience for such his precipitate 
behaviour. Deliberation often brings judgment to 
maturity, which seldom or never happens where 
the proceedings are too much hurried on. Where- 
fore the Laws of England admit of Essoins, a sort 
of practice not known in the laws of other coun- 
tries. Are not the Vouchings to Warranty of some 
use ? The same may be said of the Aids of those 



204 

to whom the reversion of lands belongs, who bring 
the title in question, and who have in their cus- 
tody the evidences to make out the title of the 
lands. The same may be said of Coparcenors, 
who are to restore in proportion, if the estate 
allotted to one of them should be evicted : and 
yet these are all delays, as I have formerly in- 
formed you : even delays of this kind the laws 
of other countries do not allow : neither do the 
Laws of England favour such delays and impar- 
lances as are frivolous and vexatious. And if, at 
any time, delays happen in pleading, which are 
found to be mischievous and inconvenient, they 
may be abolished, or reformed, in every parlia- 
ment; nay, and all other laws used in England, 
where they do not answer the intention, or labour 
under any defect, may be corrected and amended 
in Parliament. So that all the Laws of England, 
you will conclude from what has been said, must 
needs be very good, either in fact or possibility. 
They are either such already, or are easily capable 
of being made such. And to this the kings of 
England are obliged, in virtue of a solemn oath 
taken at their coronation, as often as the neces- 
sity or equity of the case shall so require*. 

• This part of Fortescue's Treatise is quoted in the Preface 
to the eighth Report, in which Coke expresses the resolution of 
the Court to discountenance all unnecessary delays, which he 
calls the device of the devil. In the second Institute he repeats 
in several places a rule for the construction of Statutes which 
accelerate the progress of causes, that they are to be construed 
liberally for effectuating that purpose. In Lord Chancellor 
Bromley's speech to C. J. Anderson, which is given in Moore's 
Reports, the oppressions arising from delay in judicial proceed- 
ings are enumerated : and the Chancellor concludes by declaring 
that he who prosecutes his right would rather have a speedy 
judgment against him, than a tardy one with him. A Court was 
established in the Reign of Edward III. for redressing delays in 
judgments ; a particular account of which Court is given in the 
fourth Institute. In the second Institute is found a multitude 
of statutary provisions in restraint of the abuses arising from the 

doctrine 



205 . 

doctrine of essoins, vouchers, aids, and demur of parol, (See 
particularly 2 Inst. 411. and Jehu Webb's Case, 8 Rep. the Rea- 
sons for Calling the Assize " Festinum Remedimn." Onfourching 
by essoin, 2 Inst. 250. Concerning the Justices of Trailbaston, 
2 Inst. 540. Spelman's Gloss, v. Trailbaston. On the Antiquity 
of Essoins, Hickes. d. e. p. 8. and Beanie's Glanville, lib. i. c 6. 
et seq. — On the Essoin de malo lecti and licentia surgendi, Regist. 
Orig. fol. 8 and 9- Selden, Hengham, Magna, n 37, Case of the 
Abbot of Crorvland, who lost his seisin, because after being essoined 
de malo lecti, when the four Knights were coming to inspect him, 
he rose to go to the Court, and the Knights did not find him in bed.) 
There were two species of delay common in Courts of Justice, 
which deserve attention as they respect the prerogative of the 
Crown ; the first of these is the Writ " de Rege Inconsulto" 
which Coke informs us was often used for the purpose of delay, 
(2 Inst. 269, 26l. Fitz. N. B. 153. Hardr. 427- Tremaine's 
P. C. 684. Bacon's Letters. Lord Ellesmere's Speech on the 
Appointment of Montague who succeeded Sir E. Coke. Moore's 
Rep. 828.). The other is the Writ of Protection which was 
a greater cause of delay than even the Essoin. Queen Eli- 
zabeth discountenanced the granting of protections in a manner 
highly honorable to her character ; they have been the subject 
of judicial decision since the Revolution, in the case of Lord 
Cutts. (Reeves's Henry VI. Co. Lift. 138. and Hargr. note ibid. 
2 Inst. 56. 3 Lev. 332. Barr. on 12 Edw. II. §. 2.) Spelman has 
traced with great learning the origin of our law terms and of 
the rules by which the intervals between the steps in the 
proceedings of a cause are regulated : many of which had their 
foundation in the superstitions of the Romish Church. (See also 
Heme's Cur. Disc, several Tracts upon Terms. Wynne's Eunomus. 
2 Inst. 64.) With respect to delays in the prosecution of 
capital offences, the wise and humane caution of Fortescue is 
repeated by Sir E. Coke and Sir M. Hale, who relate several 
melancholy instances arising within their own experience, which 
like the one cited in the text, exhibit the baneful effects of 
a precipitate execution of justice in criminal matters: On such 
occasions the Judge should be actuated by the sentiment in the 
passage of antiquity according to the sense in which it was fre- 
quently adopted by Lord Somers, " De morte hominis nulla est 
cunctatio longa." Lord Bacon had, to use his own expression, 
" somewhat of the cunctative," and the Motto which Hale put 
on the head of his Staff was " festina lente." (See further con- 
cerning Delays in Law, Pref to Sir J. Davis's Reports. Dow- 
man's Case, 9 Rep. Harl. Misc. Vol. VIII. p. 414.) 



206 



CHAP. LIV, 



Prince. I am perfectly convinced from the 
whole tenor of your discourse, that the Laws of 
England are not only good, but the best of laws 
for the particular Constitution of England. And 
if at any time some of them want amendment, it 
may be easily done by application to, and in the 
way of Parliament: so that the kingdom either 
really is, or is easily capable of being governed 
by the best of laws : and I am of opinion that 
the points you have advanced in this discourse, 
and the just encomium you have given our laws, 
may be of some use to those who shall be here- 
after kings of England : since no king can govern 
with pleasure by such laws as he is not pleased 
with, or does not rightly apprehend. "The un- 
fitness of a tool disgusts the mechanic : and the 
bluntness of the lance or spear makes a dastardly 
soldier." But as a soldier is animated to the battle 
when his arms are good, and himself expert in 
using them, according to Vegetius, who says, "that 
knowledge and experience in war breed and beget 
courage : and no one is afraid to do what he knows 
he can do well/' So a king is animated and e'n- 
couraged to do justice, when the laws, by which 
it is administered, are reasonable and just, and he 
has a sufficient knowledge of and experience in 
them. A general knowledge is sufficient for him, 
leaving it to his Judges to have a more exact and 
a more profound skill in them. So Fincentius Belu- 



207 

acensis, in his book of Moral Institution of Princes, 
says, "that every Prince ought to have a general 
knowledge of the Holy Scriptures/' which say, 
" that vain are all they in whom there is not the 
knowledge of God the Most High :" and it is 
written in the Proverbs, "let knowledge be in the 
lips of the king, and his mouth shall not err in 
judgment." Yet a Prince is not obliged to so 
critical an understanding of the Scriptures ; such 
as may become a Professor in Divinity ; a general 
insight and acquaintance with them, as with the 
laws, is all that is necessary and required of him. 
Such had Charlemaine ; such had Lewis his son ; 
such had Robert, sometime king of France, and who 
was author of this conclusion (" Sancti spiritus 
adsit Nobis Gratia") and many others, as the said 
Vincentius, in the 15th chapter of the same book, 
evidently shews. Wherefore the doctors of the 
laws do say, that " an emperor carries all his laws 
in the cabinet of his own breast." Not that he 
really and actually knows all the laws, but as he 
apprehends the principles of them, their method 
and nature, he may properly enough be said to 
understand them all. Moreover, he has it in his 
power to alter or abrogate them: so that all the 
laws are in him potentially, as Eve was in Adam 
before she was formed. But since, my good Chan- 
cellor, you have now performed what you under- 
took at first, and have fully persuaded me to apply 
myself to the study of the laws of my country, 
I will no longer detain you on [this subject. But, 
I now earnestly desire, that you will proceed, as 
you have formerly begun with it, to instruct me 
in the principles, method and nature of the Law 
of England: which law, I am resolved, shall be 
ever dear to me, preferably to all other laws in 
the world, which it as far surpasses, as the morn- 
ing star exceeds the other stars in glory and 
brightness. Since the intention is answered where- 



208 

with you were moved to this conference : time and 
reason require that we put an end to it. Ren- 
dering all due thanks and praise to Him who 
enabled us to begin, to carry on and finish it ; 
even Alpha and Omega, the beginning and the 
end, the first and the last ; and " let every thing 
that hath breath praise the Lord." Amen. 



INTRODUCTIO. 



OiEPJENTE dudum in regno Anglice nefandissima Rabie ilia 
qua piissimus ibidem Rex Henricus Sextus, cum Margareta 
Regina consorte sua, Filia Regis Jerusalem et Sicilian ac eorum 
Unigenito Edwardo Principe Walliae, inde propulsi sunt, sub qua 
et demum Rex ipse Henricus a subditis suis deprehensus Carceris 
diutinum passus est Horrorem, dum Regina ipsa cum sobole, Patria 
sic extorris, in Ducatu Berren' in pradicti Regis Jerusalem 
Dominio morabantur. Princeps ille, mox ut factus est adultus, 
militari totum se conlulit Discipline, et sxpe ferocibus et quasi 
indomitis insedens Caballis, eos Calcaribus urgens, quandoque 
Lancea, quandoque Mucrone, aliis quoque Instruments bellicis, 
Sodales suos, Juvenes sibi servientes, Bellantium more, invadere, 
ferireque, juxta Martis Gymnasii Rudimenta, delectabatur. Quod 
cernens Miles quidam grandaevus, pr&dicti Regis Anglioe Can- 
cellarius, qui etiam ibidem sub hac Clade exulabat, Principem 
sic affalur. 



CAP. I. 

Gaudeo vero, Serenissime Princeps, super nobilissima Indole 
Tua, videns quanta Aviditate militares Tu amplecteris Actus; 
convenit namque Tibi taliter delectari, nedum quia Miles es, 
sed amplius quia Rex futurus es. Regis nempe officium pugnare 
est Bella Populi sui, et eos rectissime judicare, ut primo Regum 
Capitul. VIII. clarissime Tu doceris. Quare ut Armorum uti- 
nam et Legum Studiis simili Zelo te deditura contemplarer, cum 
ut Armis Bella, ita Legibus Judicia peregantur. Quod Justi- 
nianus Augustus, aequissima librans Mente, in Initio Prohemii 
Libri sui Institutionum, ait " Imperatoriam Majestatem nan 
solum Armis decor atam, sed et Legibus oportet esse armatam,' 
ut utrumque Tempus Bellorum et Pacis recte possit gubernare. 
Tamen ut ad Legum Studia fervide tu anheles, maximus Legis- 

o 



210 

lator ille Moyses, olim Synagogae Dux, multo fortius Caesare Te 
invitat, dum Regibus Israel Divina Autoritate ipse praecipiat 
eorum Leges legere omnibus Diebus Vitae suae, sic dicens : 
" Postquam sederit Rex in Solio Regni sui, describet sibi Deute- 
ronomii Leges in Volumine, accipiens Exemplar a Sacerdotibus 
Leviticce Tribus et habebit secum, legetque illud omnibus Diebus 
vita; suae, ut discat iimere Dominum Deum suum, et custodire verba 
et Ceremonias ejus, qua; in Lege Scripta sunt," Deuteron. capit. 
decimo septimo. Quod exponens Helynandus dicit, " Princeps 
ergo non debet Juris ignarus esse, nee prcetextu Militia; Legem 
permittitur ignorare." Et post pauca, a Sacerdotibus Leviticae 
Tribus assumere jubetur Exemplar Legis, id est a viris Catholicis 
et literatis; Haec ille: Liber quippe Deut. est Liber Legum, 
quibus Reges Israel subditum sibi Populum regere tenebantur. 
Hunc Librum legere jubet Moses Reges, ut discant timere 
Deum, et custodire Mandata ejus, quae Lege scripta sunt. Ecce 
timere Deum Effectus est Legis, quem non consequi valet Homo, 
nisi prius sciat Voluntatem Dei, quae in Lege scripta est. Nam 
Principium omnis Famulatus, est scire voluntatem Domini cui 
servitur. Legis tamen lator Moses primo in hoc Edicto Effectum 
Legis, videlicet, Timorem Dei commemorat: deinde ad Custo- 
diam Causae ejus, videlicet, Mandatorum Dei ipse invitat. Nam 
Effectus prior est quam Causa in animo Exhortantis. Sed quis 
est Timor iste, quem promittunt Leges Observatoribus suis ? 
vere non est Timor ille, de quo scribitur : Quod perfecta 
Charitas foras mittit Timorem. Timor tamen ille, licet servilis, 
saepe ad legendum Leges Reges concitat, sed non est ipse Proles 
Legis. Timor vero, de quo hie loquitur Moses, quem et pariunt 
Leges, est ille de quo dicit Propheta : " Timor Domini sanctus 
permanet in Seculum seculi ;" Hie filialis est et non novit poenam, 
ut ille qui per Charitatem expellitur. Nam iste a Legibus profi- 
ciscitur, quae docent facere voluntatem Dei, quo ipse Poenam non 
meretur. Sed Gloria Domini est super metuentes eum, quos et 
ipse glorificat. Timor autem iste timor ille est, de quo Job, 
postquam multifarie Sapientiam investigat, sic ait : " Ecce Timor 
Domini, ipse est Sapientia, et recedere a malo Intelligentia." 
Job, cap. 28. Recedere a Malo, quod Intelligentia Timoris Dei 
est, Leges docent, quo et Timorem hunc ipse parturiunt. 



211 



CAP. II. 

HiEc ut audivit Princeps erecto in Senem Vultu, sic loquutus 
est. Scio, Cancellarie, quod Liber Deut. quem Tu commembras, 
sacrae Scripturae Volumen est ; Leges quoque et Ceremoniae in eo 
conscriptae etiam sacrae sunt, a Domino editae, et per Mosen pro- 
mulgate : quare eas legere sanctae Contemplationis Dulcedo est. 
Sed Lex, ad cujus Scientiam me in vitas, humana est, ab Homini- 
bus edita, et tractans terrena, quo, licet Moses ad Deuter. Lec- 
turam Reges Israel astrinxerit, eum per hoc Reges alios ad con- 
similiter faciendum in suis Legibus concitasse, omnem effugit 
Rationem, cum utriusque Lecturae non sit eadem causa. 



CAP. III. 

At Cancellarius, scio (inquit) per hsec quae jam dicis, Prin- 
ceps clarissime. quanta advertentia Exhortationis meae Tu pon- 
deras Qualitatem, quo me non infime concitas super Inceptis 
nedum, clarius, sed et profundius quodammodo Tecum discep- 
tare : Scire igitur Te volo, quod non solum Deut. Leges, sed 
et omnes Leges humanae sacrae sunt, quo Lex sub his verbis 
definitur : Lex est Sanctio sancta, jubens honesta, et prohibens 
contraria: Sanctum etenim esse oportet, quod esse sanctum 
definitum est. Jus etiam describi perhibetur, quod illud Ars est 
boni et aequi, cujus merito quis nos Sacerdotes appellat. Sacerdos 
enim, quasi sacra dans, vel sacra docens, per Etymologium 
dicitur, quia ut dicunt, Jure Leges sacrae sunt, quo eas mi- 
nistrantes et docentes, Sacerdotes appellantur. Adeo etiam sunt 
omnes Leges editae,' quae ab Homine promulgantur. Nam cum 
dicat Apostolus, quod omnis Potestas a Domino Deo est, Leges 
ab Homine conditae, qui ad Hoc a Domino recipit Potestatem, 
etiam a Deo constituuntur, dicente Auctore Causarum: " Quic- 
quid facit Causa secunda, facit et Causa prima, altiori et nobi- 
liori modo." Quare Josophat, Rex Juda, ait Judicibus suis, 
" Judicia, qu& vos profertis, Judicia Dei sunt," secundo Paralipo. 
XIX. Capitul. Ex quibus erudiris, quod Leges, licet humanas, 
addiscere, est addiscere Leges sacras et Editiones Dei, quo earum 
Studium non vacat a Dulcedine Consoiationis Sanctae. Nee 

o2 



212 

tamen, ut tu conjicis, Dulcedo hujusmodi causa fuit, cur Moses 
Reges Israel Deut. legere praeceperat. Nam Causa haec non plus 
Reges quam Plebeios ad ejus Lecturam provocat, pec plus Deut. 
Librum, quam alios Pentateuohi Libros legere pulsat Causa ista, 
cum non minus Libri illi, quam Deut. sacris abundant Carismati- 
bus, in quibus meditari per sanctum est. Quare non aliam fuisse 
Causam mandati hujus, quam quia in Deut. plus quam in aliis 
Libris veteris Testamenti, Leges inseruntur, quibus Rex Israel 
Populum regere obnoxius est, ejusdem Mandati Circumstantial 
manifeste nos informant. Quo, et Te, Princeps, eadem Causa 
non minus quam Reges Israel exhortatur, ut Legum, quibus 
Populum in futurum reges, Tu sis solers Indagator. Nam, quod 
Regi Israel dictum est, omni Regi Populi videntis Deum, typice 
dictum fuisse Intelligendum est. An tunc non convenienter 
utiliterque proposui Tibi Mandatum Regibus Israel latum, de 
eorum Lege addiscenda? Dum nedum ejus Exemplum, sed 
et ejus Auctoritas figuralis, Te erudivit et obligavit ad con- 
similiter faciendum de Legibus Regni, quod annuente Domino 
haereditaturus es. 



CAP. IV. 

Non solum ut Deum timeas, quo et sapiens eris, Princeps 
colendissime, vocant te Leges, cum Propheta dicente " Venite 
Filii audite me, Timorem Domini docebo vos:" sed etiam ut Feli- 
citatem, Beatitudinemque (prout in hac Vita nancisci poteris) 
adipiscaris, ipsae Leges ad earum Disciplinatum Te invitant. 
Philosophi namque omnes, qui de Felicitate tam varie dispu- 
tabant, in hoc uno convenerunt, viz. quod Felicitas sive Beatitudo 
Finis est omnis humani Appetitus, quare et ipsam summum 
Bonmm appellant, Peripaietici tamen constituebant earn in Vir- 
tute : Stoici in honesto : et Epicuri in Voluptate. Sed quia 
Stoici Honestum definiebant esse quod bene fit et laudabiliter 
ex Virtute, et Epicuri afferebant nihil esse voluptuosum sine 
Virtute, omnes sectae illae, ut dicit Leonardus Aretienus Ysago- 
gico moralis Disciplinae, id hoc concordaverunt, quod sola Virtus 
est, qua? Felicitatem operatur. Quo et Philosophus (in 7 Polit. 
Felicitatem definiens) dicit, quod ipsa est perfectus usus Virtu- 
tum. His jam praesuppositis, considerare Te volo etiam ea qua? 



213 

sequentur. Leges humanae non aliud sunt quam Regulae, quibus 
perfecte Justitia edocetur. Justitia vero, quam Leges revelant, 
non est ilia, quae commutativa vel distributativa vocatur, seu 
alia quaevis particularis virtus, sed est Virtus perfecta, quae 
Justitia" legalis Nomine designatur. Quam Leonardus praedictus 
ideo dicit esse perfectam, quia omne Vitium ipsa eliminat, et 
omnem virtutem ipsa docet: quo et omnis Virtus ipsa merito 
nuncupatur. De qua Homerus dicit, similiter et Philosophus 
quinto Ethicorum, Quod ipsa est praeclarissima Virtutum, et nee 
Lucifer, nee Hesperus, ut ilia, est admirabilis. Justitia vero 
hsec subjectum est omnis regalis Curae, quo sine ilia Rex juste 
non judicat, nee recte pugnare potest. Ilia vero adepta perfec- 
teque servata, aequissime peragitur omne Officium Regis. Unde 
cum perfectus usus Virtutum sit Felicitas, et Justitia humana, 
quae non nisi per Legem perfecte nanciscitur aut docetur, nedum 
sit Virtutum Effectus, sed et omnis Virtus : sequitur, quod Jus- 
titia fruens felix per Legem est, quo et per earn ipse fit beatus, 
cum idem sit Beatitudo et Felicitas in hac fugaci vita, cujus et 
per Justitiam ipse summum habet Bonum. Tamen non nisi per 
Gratiam Lex poterit ista operari, neque Legem aut Virtutem sine 
Gratia Tu addiscere poteris, vel appetere. Cum, ut dicit Paris. 
in Libro suo de Cur Deus Homo, Virtus Hominis appetitiva 
interior per peccatum Originale ita vitiata est, ut sibi Vitiorum 
suavia, et Virtutum aspera Opera sapiant. Quare, quod aliqui 
ad Amorem, Sectationemque Virtutis se conferunt, divinae Boni- 
tatis Beneficium est, et non humanae Virtutis. Num tunc Leges, 
quae, praeveniente et comitante Gratia, omnia Praemissa operantur, 
toto Conamine addiscendae sunt? Dum Felicitatem, quae se- 
cundum Philosophos est hie Finis et Complementum humani 
Desiderii, earum Apprehensor obtinebit, quo et beatus ille erit in 
hac Vita, ejus possidens summum Bonum. Vere, etsi non haec 
Te moveant, qui Regnum recturus es, movebunt Te et acetabunt 
ad Disciplinatum Legis Prophetae verba dicentis: " Erudimini qui 
judicalis Terram :" non enim ad Eruditionem Artis factivae, aut 
mechanicae, hie movet Propheta : Cum non dicat, Erudimini, qui 
colitis Terram, nee ad Eruditionem scientiae tantum Theoricae, 
quamvis opportuna fuerit Incolis Terrae, quia generaliter non 
dicit, Erudimini qui inhabitatis Terram, sed solum ad Discipli- 
nam Legis, qua Judicia redduntur, Reges invitat Propheta in his 
Verbis, cum specialiter ipse dicat, "Erudimini qui judicalis 
Terram." Et sequitur, " Ne quando irascatur Dominus, et per- 



214 

eatis de viajusta." Nee solum Legibus, quibus Justitiam conse- 
queris, (Fili Regis) imbui Te jubet sacra Scriptura, sed et ipsam 
Justitiam diligere Tibi alibi praecipit, cum dicat, " Diligite 
Justitiam qui judicatis Terram." Sapientiae Capitulo primo. 



CAP V. 

Oed quomodo Justitiam diligere poteris, si non primo Legum 
Scientiam, quibus ipsa cognoscatur, utcunque apprehenderis ? 
Dicit namque Philosophus, quod Nihil amatum nisi cognitum. 
Quare Fabius Orator ait, " Quod felices essent Artes, si de Mis 
soli Artifices judicarent." Ignotum vero non solum non amari. 
sed et sperni solet. Quo Poeta quidam sic ait, 

Omnia quae nescit, dicit spemenda Colonus. 

Et non Coloni solum Vox haec est, sed et Doctorum peritissi- 
morum quoque Virorum. Nam si ad Philosophum Naturalem, 
qui in Mathemat. nunquam studet, Metaphysicus dicat, Quod 
Scientia sua considerat Res separatas ab omni Materia et motu 
secundum esse et secundum Rationem : vel Mathematicus dicat, 
quod sua Scientia considerat Res conjunctas Materia? et motui, 
secundum Esse, sed separatas secundum Rationem : ambos hos, 
licet Philosophos, Philosophus ille Naturalis, qui nunquam novit 
Res aliquas separatas a Materia et Motu, Essentia vel Ratione, 
spernet, eorumque Scientias, licet sua Scientia Nobiliores, ipse 
deridebit, non alia ductus Causa, nisi quia eorum Scientias ipse 
penitus ignorat. Sic et Tu, Princeps, Legis Angliae peritum 
miraberis, si dicat, quod Frater Fratri sibi nequaquam uterino 
non succedet in Haereditate paterna, sed potius Haereditas ilia 
Sorori integri Sanguinis sui descendet, aut Capitali Domino Feodi 
accidet ut Escaeta sua: Cum Causam Legis hujus Tu ignores, 
in Lege tamen Angliae doctum hujus Casus Difficultas nullatenus 
perturbat. Quare et vulgariter dicitur : Quod Ars non habet 
Inimicum nisi ignorantem. 

Sed absit a te, Fili Regis, ut inimiceris Legibus Regni, quo 
Tu successurus es, vel ut eas spernas, quum Justitiam diligere 
praedicta Sapientiae Lectio Te erudiat. Iterum igitur atque 
iterum, Princeps inclytissime, Te adjuro, ut Leges Regni Patris 



215 

Tui, cui successurus es, addiscas ; nedum ut Inconvenientias has 
Tu evites: Sed quia Mens humana, quae naturaliter Bonum 
appetit, et nihil potest appetere, nisi sub Ratione Boni, mox ut per 
Doctrinam Bonum apprehenderit, gaudet et illud amat, ac quanto 
deinceps illud plus recordatur, tanto amplius delectatur in eodem, 
quo doceris, quod si Leges praedictas, quas jam ignorasj intel- 
lexeris per Doctrinam, cum optimae illae sint, amabis eas. 
Et quanto plus easdeni mente pertractaveris, delectabilius Tu 
frueris. 

Nam omne, quod amatur, usu trahit Amatorem suum in 
Naturam ejus. Unde, ut dicit Philosophus, nsus altera sit Na- 
tura. Sic Ramunculus Pyri Stipiti Pomi insertus, postquam 
coaluerit, ita Pomum trahit in Naturam Pyri, ut ambae deinceps 
merito Pyrus appellentur, Fructusque producant Pyri. Sic et 
usitata Virtus habitum generat, ut utens ea deinde a Virtute 
ilia denominetur, quo Modestia praeditus, usu. Modestus nomi- 
natur, Continentia continens, et Sapientia sapiens. Quare et Tu, 
Princeps, postquam Justitia delectabiliter functus fueris, habi- 
tumque Legis indutus fueris, merito denominaberis Justus, cujus 
gratia Tibi dicetur, Dilexisti Justitiam, quo et odisti Iniquitatem, 
propterea unxit Te Dominus Deus Tuus Oleo hxtitim prai con- 
sorlibus Tuis Regibus Terra?. 



CAP. VI. 

Nonne tunc, Princeps serenissime, haec Te satis concitant 
ad Legis Rudimenta ? cum per ea Justitiam induere valeas : 
quo et appellaberis Justus, Ignorantiae quoque Legis evitare 
poteris Ignominiam: ac per Legem Felicitate fruens, beatus 
esse poteris in hac Vita, et demum filiali Timore indutus, qui 
Dei Sapientia est, Charitatem, quae Amor in Deum est, imper- 
turbatus consequeris, qua Deo adhaerens per Apostoli Sententiam 
" Fies unus Spirilus cum eo." 

Sed quia ista, sine Gratia, Lex operari nequit, Tibi illam 
super omnia implorare necesse est, Legis quoque Divinae et 
Sanctarum scripturarum indagare Scientiam. 

Cum dicat Scriptura sacra, quod " Vani sunt omnes, in quibus 
non subest Scientia Dei" Sapientia, cap. XIII. 

His igitur, Princeps, dum Adolescens es, et Anima tua velut 



216 

Tabula rasa, depinge earn, ne in futurum ipsa Figuris minoris 
Frugi delectabilius depingatur. 

Quia etiam, (ut Sapiens quidam ait,) 
Quod nova Testa capit, inveterata sapit. 

Quis Artifex tam Negligens profectus suae Prolis est, ut non earn, 
dura pubescit, Artibus instruat, quibus postea vitae Solatia nan- 
ciscatur? Sic lignarius Faber secare Dolabra, Ferrarius ferire 
Malleo, Filium instruit: et quern in Spiritualibus ministrare 
cupit, Literis imbui facit: Sic et Principi Filium suum, qui 
post eum Populum regulabit, Legibus instrui dum minor est, 
convenit. Qualiter si fecerint Rectores Orbis, Mundus iste am- 
pliori, quam jam est, Justitia regeretur, quibus, si Tu, ut jam 
hortor, facias, Exemplum non minimum ministrabis. 

CAP. VII. 

Silente extunc Cancellario, Princeps ipse sic exorsus est : 
Vicisti me, Vir egregie, suavissima Oratione Tua, qua et 
Animum meum Ardore non minimo Legis fecisti sitire Docu- 
ments. Sed tamen duobus me hue illucque agitantibus, Ani- 
mus ipse affligitur : ut tanqaam in turbido Mari Cymba nesciat 
quorsum dirigere Proras. Unum est, dum recolit quot An- 
norum Curriculis Leges addiscentes earum studio se con- 
ferunt, antequam sufficientem earundem Peritiam nanciscantur, 
quo timet Animus ipse ne consimiliter ego praeteream Annos 
Juventutis meae. Alterum est, an Angliae Legum vel Civilium, 
quae per Orbem percelebres sunt, Studio operam dabo. Nam 
non nisi optimis Legibus populum regere licet, etiam ut elicit 
Philosophus, " Natura deprecatur Optima." Quare libenter super 
his, quod tu consulis, auscultaremus. Cui Cancellarius. Non 
sunt haec, Fill Regis, tantis celata Mysteriis ut Deliberatione 
egeant ingenti, quare quid in his mihi visum est prodere non 
differemus. 

CAP. VIII. 

Philosophus in prirao Physicorum dicit, quod "Tunc 
umimquodque scire arbitramur, cum Causas et Principia ejus cog- 
noscamus usque ad Elementa." Super quern Textum Commen- 



217 

tator dicit, quod Aristoteles per Principia intellexit Causas 
efficientes, per Causas intellexit Causas finales, et per Elementa 
Materiam et Formam. In Legibus vero non sunt Materia et 
Forma, ut in Physicis et Compositis. Sed tamen sunt in eis 
Elementa quaedam, unde ipsae profluunt, ut ex Materia et 
Forma, quae sunt Consuetudines, Statuta, et Jus NatUraz, ex 
quibus sunt omnia Jura Regni, ut ex Materia et Forma sunt 
quaeque Naturalia : et ut ex Literis, quae etiam Elementa appel- 
lantur, sunt omnia quae leguntur. Principia autem, quae Com- 
mentator dicit esse Causas efficientes, sunt quaedam Universalia, 
quae in Legibus Angliae docti, similiter et Mathematici, Maxi- 
mas vocant : Rhetorici Paradoxas : et Civilista? Regulas Juris 
denominant. Ipsa revera non Argumentorum vi, aut Demon- 
strationibus Logicis dignoscuntur, sed ut Secundo Posteriorum 
docetur, Inductione, via sensus et memoriae adipiscuntur. Quare 
et primo Physicorum Philosophus dicit, " Quod Principia non 
Jiunt ex aliis, neque ex alterutris, sed ex Mis alia Jiunt." Quo 
primo Topicorum scribitur, quod " unumquodque Principiorum 
est sibi ipse Fides. Unde, cum negantibus ea (dicit Philosophus) 
non est disputandum" quia ut scribitur VI. Ethicorum, " Ad 
Principia non est Ratio." Igitur Principiis imbuendi sunt, qui- 
qui gliscunt aliquas intelligere Facultates. Ex eis etenim reve- 
lantur Causae finales, ad quas, Rationis Ductu, per Principiorum 
Agnitionem pervenitur ; unde, his tribus, viz. Principiis, Causis, 
et Elementis ignoratis, Scientia, de qua ipsa sunt, penitus ignoratur. 
Et his cognitis, etiam Scientiam illam cognitam esse, non deter- 
minate, sed in confuso et universaliter, arbitratur. 

Sic Legem Divinam nos nosse indicamus, dum Fidem, 
Charitatem, et Spem, Sacramenta quoque Ecclesiae ac Dei 
Mandati, nos intelligere sentiamus; caetera Theologiae Mysteria 
Ecclesiae Praesidentibus relinquentes. Quare Dominus Disci - 
pulis suis ait, " Vobis datum est nosse Mysterium Regni Dei, 
ceteris autem in Parabolis, ut videntes non videant, &c." Et 
Apostolus dixit, " Non plus sapiere quam oportet sapere." Et 
alibi, " Non alta sapientes." Sic et Tibi, Princeps, necesse non 
erit Mysteria Legis Angliae longo Disciplinatu rimare, sufficiet 
Tibi, ut in Grammatica Tu profecisti, etiam et in Legibus pro- 
ficias. Grammaticae vero perfectionem, quae ex Elymologia, 
Orthographia, Prosodia, et Syntaxi, quasi ex quatuor Fontibus 
profluit, non Specie tenus induisti, et tamen Grammatica suffi- 
cienter eruditus es, ita ut merito Grammaticus denomineris. 



218 

Consimiliter quoque denominari Legista mereberis, si Legum 
Principia et Causas, usque ad Elementa, Discipuli More in- 
dagaveris. Non enim expediet Tibi, ( propria Sensus Indagine 
Legis Sacramenta rimare, sed relinquantur ilia Judicibus Tuis 
et Advocatis, qui in Regno Angliae Servientes ad Legem appel- 
lantur, similiter et aliis peritis, quos Apprenticios vulgus deno- 
minat : melius enim per alios, quam per Teipsum Judicia 
reddes, quo, proprio Ore, nullus Regum Anglice Judicium proferre 
usus est; et tamen sua sunt omnia Judicia Regni, licet per 
alios ipsa reddantur, sicut et Judicum omnium Sententias Josaphat 
asseruit esse Judicia Dei. Quare, Tu Princeps serenissime, parvo 
Tempore, parva Industria, sufficienter eris in Legibus Regni 
Angliae eruditus, dummodo ad ejus Apprehensionem Tu con- 
feras Animum tuum. Dicit namque Seneca in Epistola ad 
Lucillum, " Nihil est quod pertinax Opera, et diligens Cura, non 
expugnat." Nosco namque Ingenii Tui Perspicacitatem, quo 
audacter pronuntio, quod in Legibus illis, licet earum Peritia, 
qualis Judicibus necessaria est, vix XX. Annorum Lucubra- 
tionibus acquiratur, Tu Doctrinam Principi congruam in Anno 
uno sufficienter nancisceris, nee interim Militarem Disciplinam, 
ad quam tarn ardenter anhelas, negliges ; sed ea, Recreationis 
Loco, etiam Anno illo, Tu ad Libitum perfrueris. 



CAP. IX. 

Secundum vero, Princeps, quod tu formidas, consimili nee 
Majori opera elidetur. Dubitas nempe, an Anglorum Legum, 
vel Civilium Studia Te conferas, dum Civiles supra humanas 
cunctas Leges alias, Fama per Orbem extollat gloriosa. Non te 
conturbet, Fili Regis, haec Mentis Evagatio: Nam non potest 
Rex Angliae ad Libitum suum Leges mutare Regni sui, Prin- 
cipatu namque nedum Regali, sed et Politico, ipse suo Populo 
dominatur. Si regali tantum ipse praeesset eis, Leges Regni 
sui mutare ille posset, Tallagia quoque et caetera Onera eis 
imponere ipsis inconsultis, quale Dominium denotant Leges 
Civiles, cum dicant, " Quod Principi placuit, Leges habet Vigo- 
rem." Sed longe aliter potest Rex politice imperans Genti suae, 
quia nee Leges ipse sine Subditorum Assensu mutare poterit, 
nee Subjectum Populum renitentem onerare Impositionibus 
peregrinis, quare Populus ejus libere fruetur Bonis suis, Legi- 



219 

bus quas cupit Regulatus, nee per Regem suum, aut quemvis 
alium depilatur; consimiliter tamen plaudit Populus, sub Rege 
Regaliter tantum principante, dummodo ipse in Tyrannidem 
non labatur. De quali Rege dicit Philosophus III. Pobticorum, 
" Quod melius est Civitatem regi Viro optimo, quam Lege optima." 
Sed quia non semper contingit Praesidentem Populo hujusmodi 
esse Virum, Sanctus Thomas in Libro quem Regi Cypri scripsit, 
de Regimine Principum, optare censetur, Regnum sic institui, 
ut Rex non libere valeat Popidum Tyrannide gubernare, quod 
solum fit, dum Potestas Regia Lege Politica cohibetur : Gaude 
igitur, Princeps optime, talem esse Legem Regni in quo Tu 
successurus es, quia et Tibi, et Populo, ipsa Securitatem prae- 
stabit non minimam et Solomen. Tali Lege, ut dicit idem 
Sanctus, regulatum fuisset totum Genus humanum, si in Para- 
diso Dei Mandatum non praeteriisset : tali etiam Lege regebatur 
Synagoga, dum sub solo Deo Rege, qui earn in Regnum pecu- 
liare adoptabat ; ilia militabat ; sed domum ejus Petitione, Rege 
Homine sibi constitute, sub lege tantum Regali ipsa deinceps 
humiliata est. Sub qua tamen dum optimi Reges sibi praefu- 
erunt, ipsa plausit, et dum Discoli ei praeessebant, ipsa incon- 
solabiliter lugebat, ut Regum Liber haec distinctius manifestavit. 
Tamen quia de Materia ista in Opusculo, quod Tui contem- 
platione de Natura Legis Naturaz exaravi, sufficienter puto me 
desceptasse, plus inde loqui jam desisto. 



CAP. X. 

Tunc Princeps illico sic ait. Unde hoc, Cancellarie, " Quod 
Rex unus Plebem suam Regaliter tantum regere valeat, et Regi 
alteri Potestas hujusmodi denegatur ?" aequalis Fastigii cum sint 
Reges ambo, cur in Potestate sint ipsi dispares nequeo non 
admirari. 



CAP. XI. 

Cancellarius. Non minoris esse Potestatis Regem Politice 
imperantem, quam qui ut vult Regaliter regit Populum suum, 



220 

in supradicto Opusculo sufficienter est ostensum ; diversae tamett 
Authoritatis eos in Subditos suos ibidem ut jam nullatenus 
denegavi, cujus Diversitatis Causam, ut potero, Tibi pandam. 



CAP. XII. 

Homines quondam Potentia praepollentes, avidi Dignitatis 
et Gloria, vicinas saepe Gentes sibi Viribus subjugarunt, ac 
ipsis servire, obtemperare quoque Jussionibus suis compulerunt, 
quas Jussiones extunc Leges Hominibus illis esse ipsi sancierunt. 
Quarum perpetione diutina, subjectus sic Populus, dum per 
subjicientes a caetorum Injuriis defendebatur, in Subjicientium 
Dominium consenserunt : Opportunius esse arbitrantes, se unius 
subdi Imperio, quo erga alios defenderentur, quam omnium 
eos infestare volentium Oppressionibus exponi. Sic que Regna 
quaedam inchoata sunt, et subjicientes illi, dum Subjectum 
Populum sic rexerunt, a regendo sibi Nomen Regis usurparunt, 
eorum quoque Dominatus tantum Regalis dictus est. Sic Nem- 
broth primus sibi Regnum comparavit, tamen non Rex ipse, 
sed " Robustus Venator coram Domino" Sacris Literis appellatus 
est: quia ut Venator Feras Libertate fruentes, ipse Homines 
sibi compescuit obedire. Sic Belus Assyrias, et Ninus quam 
Magnam Asice Partem Ditioni suae subegerunt. Sic et Romani 
Orbis Imperium usurparunt, qualiter fere in Omnibus Gentibus 
Regna inchoata sunt. Quare, dum Filii Israel Regem postu- 
labant, sicut tunc habuerunt omnes Gentes, Dominus inde 
offensus Legem Regalem eis per Prophetara explanari mandavit. 
Quae non alii id fuit, quam Placitum Regis eis praeessentis, ut 
in primo Regum Libro plenius edoceretur. Habes nunc (ni 
fallor) Princeps clarissime, Formam Exordii Regnorum Regaliter 
possessorum. Quare, quomodo Regnum Politice regulatum pri- 
mitus erupit, etiam jam propalare conabor, ut cognitis amborum 
Regnorum Initiis, Causam Diversitatis, quam Tu quaeris, inde 
elicere Tibi facillimum sit. 



CAP. XIII. 

Sanctus Augustinus, in Libro XIX. de Civitate Dei, Cap.' 
XXIII. dicit "Quod Populus est Coetus Hominum, Juris con- 



221 

sensu et Utilitatis Commwiione Sociatus." Nee tamen Populus 
hujusmodi dum acephalus, sine Capite, esse Corpus vocari mere- 
tur. Quia ut in Naturalibus, Capite detruncato, residuum non 
Corpus, sed Truncum appellamus ; sic et in Politicis, sine Capite 
Communitas nullatenus corporatur. Quo, primo Polit. dicit Phi- 
losophus " Quod quandocunque ex pluribus constituitur unum inter 
ilia, unum erit Regens, et alia erunt recta." Quare Populum, se 
in Regnum aliunde Corpus Politicum erigere volentem, semper 
oportet unum praeficere totius Corporis illius regitivum, quem 
Regem nominare solitum est. Hoc Ordine, sicut ex Embrione 
Corpus surgit Physicum, uno Capite regulatum, sic ex Populo 
erumpit Regnum, quod Corpus extat mysticum, uno Homine ut 
Capite gubernatum. Et sicut in Naturali Corpore, ut dicit 
Philosophus, Cor est primum vivens, habens in se Sanguinem, 
quem emittit in omnia ejus Membra, unde ilia vegetantur et 
vivunt; sic in Corpore Politico, Intentio Populi primum vivi- 
dum est, habens in se Sanguinem, viz. Provisionem Politicam 
Utilitati Populi illius, quam in Caput et in omnia Membra 
ejusdem Corporis ipsa transmittit, quo Corpus illud alitur et 
vegetatur. Lex vero, sub qua Coetus Hominum Populus effi- 
citur, Nervorum Corporis Pbysici tenet Rationem: Quia sicut 
per Nervos Campago Corporis solidatur, sic per Legem, quae 
a Ligando dicitur, Corpus hujusmodi Mysticum ligatur et ser- 
vatur in unum, et ejusdem Corporis Membra ac Ossa, quae 
Veritatis, qua Communitas ilia sustentatur, Soliditatem denotant, 
per Legem, ut Corpus Naturale per nervos propria retinent 
Jura. Et ut non potest Caput Corporis Physici Nervos suos 
commutare, neque Membris suis proprias Vires, et propria San- 
guinis Alimenta denegare, nee Rex, qui Caput Corporis Politici 
est, mutare potest Leges Corporis illius, nee ejusdem Populi 
substantias proprias subtrahere, reclamantibus eis aut invitis. 
Habes ex hoc jam, Princeps, Instituti omnis Politici Regni 
Formam, ex qua metiri poteris Potestatem, quam Rex ejus in 
Leges ipsius aut Subditos valeat exercere : Ad Tutelam nam que 
Legis Subditorum, ac eorum Corporum et Bonorum Rex hujus- 
modi erectus est, et hanc Potestatem a Populo effluxam ipse 
habet, quo ei non licet Potestate alia suo Populo dominari: 
quare ut Postulationi Tuae, qua certiorari cupis, unde hoc 
provenit quod Potestates Regum tam diversimode variantur, 
succinctius satisfaciam. Firme conjector, quod diversitates In- 
stitutionum Dignitatum illarum, quas propalavi, praedictam 



222 

Discrepantiam solummodo operantur, prout Rationis Discur9U 
Tu ex Praemissis poteris exhaurire. Sic namque Regnum An- 
giitis, quod ex Bruti Comitiva Trqjanorum, quam ex Italics et 
Grcecorum Finibus perduxit, in Dominium Politicum et Regale 
prorupit: Sic et Scotia, qua; ei quondam ut Ducatus obedivit, 
in regnum crevit Politicum et Regale. Alia quoque plurima 
Regria nedum Regaliter, sed et Politice regulari, tali Origine 
Jus sortita sunt. Unde Diodofus Siculus in Secundo Libro 
Historiarum priscarum de Egyptiis sic scribit, suam primum 
Egyptii Reges Vitam non aliorum Regnantium, quibus Voluntas 
pro Lege est, traducebant Licentia, sed veluti privati tene- 
bantur Legibus, neque id segre ferebant, existimantes parendo 
Legibus se beatos fore. Nam ab his, qui suis indulserunt Cupi- 
ditatibus, multa censebant fieri, quibus Dampna Periculaque 
subirent. Et in quarto Libro sic scribit : " Assumptus in Regem 
Ethiopum vitam ducit statutam Legibus, omniaque agit juxta 
Patrios Mores, neque Praemio neque Poena afficiens quenquam 
praeter per traditam a Superioribus Legem." Consimiliter loqui- 
tur de Rege Saba infelici Arabia, et aliis quibusdam Regibus, 
qui priscis Temporibus feliciter regnabant. 



CAP. XIV. 

Cui Princeps ; Effugasti, Cancellarie, Declarationis Tuae 
Lumine Tenebras, quibus obducta erat Acies Mentis mese, quo 
clarissime jam conspicio, quod non alio Pacto Gens aliqua, 
proprio Arbitrio, unquam se in Regnum corporavit, nisi ut 
per hoc se et sua, quorum Dispendia formidabant, tutius quam 
antea possiderent ; quasi Ptoposito Gens hujusmodi fraudaretur, 
si exinde Facultates eorum eripere possit Rex suus, quod antea 
facere ulli Hominum non licebat. Et adhuc gravius multo 
Populus talis laederetur, si deinde peregrinis Legibus, etiam 
ipsis forsan exosis, regerentur. Et maxime, si Legibus illis 
eorum minoraretur Substantia, pro cujus vitanda Jactura, ut 
pro suorum Tutela Corporum, ipsi se Regis Imperio Arbitrio 
proprio submiserunt, non potuit revera Potestas hujusmodi ab 
ipsis erupisse; et tamen si non ab ipsis, Rex hujusmodi super 
ipsos nullam obtineret Potestatem. E regione, aliter esse con- 
cipio de Regno, quod Regis solum Auctoritate et Potentia 



223 

incorp&ratum est, quia non alio pacto Gens talis ei subjecta 
est, nisi ut ejus Legibus, quae sunt illius Placita, Gens ipsa, 
quae eodem Placito Regnum ejus effecta est, obtemperaret et 
regeretur. Neque Cancellarie, a raea hucusque Memoria elap- 
sum est, quod alias in Tractatu de Natura Legis Naturae, horum 
duorum Regum aequalem esse Potentiam doctis Rationibus osten- 
disti, dum Potestas, qui, qua eorum alter perperam agere liber 
est, Libertate hujusmodi non augetur, ut posse languescere 
morive, Potentia non est, sed propter Privationes in Adjecto, 
Impotentia potius denominandum. Quia, ut dicit Boetius, 
" Potentia non est nisi ad Bonum ;" quod posse male agere, ut 
potest Rex Regaliter regnans liberius quam Rex politice domi- 
nans Populo suo, potius ejus Potestatem minuit, quam aug- 
mentat Nam Sancti Spiritus, jam confirmati in Gloria, qui 
peccare nequeunt, potentiores nobis sunt, qui ad omne Facinus 
libris gaudemus Habenis. Solum igitur mihi jam superest a Te 
sciscitandum, " Si hex Anglia, ad cujus Disciplinatum me 
provocas, bona et efficax est ad Regimen Regni illius; ut Lex 
Civilis, qua sacrum regulatur Imperium, sufficiens arbitratur ad 
Orbis Regimen universi ?" Si me in hoc, Demonstrationibus 
congruis, indubium reddideris, ad studium Legis illius illico 
me conferam, nee Te Postulationibus meis super his amplius 
fatigabo. 

CAP. XV. 

Cancellarius. Memoriae Tuae, Princeps optime, commen- 
dasti, quae Tibi hucusque suggessi, quare et quae jam interrogas, 
meritus es ut pandam. Scire Te igitur volo, quod omnia Jura 
Humana, aut sunt Lex Naturae, Consuetudines, vel Statuta, qua 
et Constitutiones appellantur. Sed Consuetudines, et Legis Na- 
turae Sententiae, postquam in Scripturam redactae, et sufficienti 
Auctoritate Principis promulgatae fuerint, ac custodiri jubeantur, 
in Constitutionem sive Statutorum Naturam mutantur, et deinde 
pcenalius quam antea Subditos Principis ad earum Custodiam 
constringunt, severitate Mandati illius. Qualis est Legum Civi- 
lium Pars non modica, quae a Romanorum Principibus in magnis 
Voluminibus redigitur, et eorum Auctoritate observari mandatur. 
Unde Legis Civilis, ut caetera Imperatorum Statuta, jam pars ilia 
Nomen sortita est. Si igitur in his tribus, quasi oninis Juris 



224 

Fontibus, Legis Angliae Praestantiam probaverim praefulgere, 
Legem illam bonam esse et efficacem ad Regni illius Regimen 
etiam comprobavi. Deinde, si earn ad ejusdem Regni Utilitatem, 
ut Leges Civiles ad Imperii Bonum, accommodam esse lucide 
estenderim, nedum tunc Legem illam praestantem, sed et, ut 
Leges Civiles, electam (ut tu optas) etiam patefeci. Igitur haec 
duo Tibi ostendere satagens, sic progredior. 



CAP. XVI. 

Leges Angliae in his, quae ipsae sanciunt, Legis Naturae 
Ratione non meliores pejoresve sunt in Judiciis suis, quam in 
consimilibus sunt omnes Leges caeterarum Nationum. Quia, ut 
dicit Philosophus, V. Ethicorum : " Jus naturale est, quod apud 
omnes Homines eandem habet potentiam," quare de ea amplius 
disceptare non expedit. Sed quales sunt Angliae Consuetudines 
similiter et statuta, est a modo perscrutandum, et primo Consue- 
tudinum illarum visitabimus Qualitates. 



CAP. XVII. 

Regnum Anglice primo per Britanos inhabitatum est; deinde, 
per Romanos regulatum; iterumque per Britanos, ac deinde 
per Saxones possessum, qui Nomen ejus ex Britannia in Angliam 
mutaverunt. Ex tunc per Danos idem Regnum parumper domi- 
natum est, et iterum per Saxones, sed finaliter per Normannos, 
quorum Propago Regnum illud obtinet in praesenti. Et in om- 
nibus Nationum harum et Regum earum Temporibus, Regnum 
illud eisdem, quibus jam regitur, Consuetudinibus continue regu- 
latum est. Quae, si optimae non exstitissent, aliqui Regum illorum 
Justitia, Ratione, vel Affectione concitati eas mutassent, aut omnino 
delevissent; et maxime Romani, qui Legibus suis quasi totum 
Orbis reliquum judicabant. Similiter et alii Regum praedic- 
torum, qui solum Gladio Regnum Angliae possiderunt, quo et 
Potentia simili ipsi Leges ejus exinanisse valuerunt. Neque 
vero tantorum Temporum Curriculis, Leges Civiles in quantum 
Romanorum inveteratce sunt, neque Venetorum Leges, quae super 



225 

alias Antiquitate divulgantur, quorum turn Insula, in Initio 
Britonum, inhabitata non fuit, sicut nee Roma condita, nee ul- 
lorum Mundi Regnorum Deicolarum Leges tanto aevo inolita- 
sunt. Quare non bonas, immo non optimas esse Anglorum 
Consuetudines, sicut non dicere, ita nee suspicari Fas est. 



CAP. XVIII. 

Statuta tunc Anglorum bona sint necne, solum restat 
explorandum. Non enim emanant ilia a Principis solum Vo- 
luntate, ut Leges in Regnis quae tantum Regaliter gubernantur, 
ubi quandoque Statuta ita Constituent is procurant Commodum 
singulare, quod in ejus Subditorum ipsa redundant Dispendium 
et Jacturam : Quandoque etiam Inadvertentia Principum hujus- 
modi, et sibi consulentium inertia, ipsa tam inconsulte eduntur, 
quod Corruptelarum Nomina, potius quam Legum, ilia merentur. 
Sed non sic Angliae Statuta oriri possunt, dum nedum Principis 
Voluntate, sed et totius Regni Assensu, ipsa conduntur, quo Populi 
Laesuram ilia efficere nequeunt, vel non eorum Commodum pro- 
curare. Prudentia, etiam et Sapientia necessario ipsa esse referta 
putandum est, dum non unius, aut centum solum consultorum 
Virorum Prudentia, sed plusquam trecentorum electorum. Homi- 
num, quali Numero olim Senatus Romanorum regebatur, ipsa 
edita sunt, ut ii, qui Parliamenti Angliae Formam, Convocationis 
quoque ejus Ordinem et Modum noverunt, haec distinctius referre 
norunt. Et si Statuta haec tanta Solemnitate et Prudentia edita, 
Emcaciae tantae, quanta? Conditorum cupiebat Intentio, non esse 
contingant, concito reformari ipsa possunt ; et non sine Commu- 
nitatis et Procerum Regni illius Assensu, quali ipsa primitus 
emanarunt. Patent igitur jam Tibi, Princeps, Legum Anglorum 
Species omnes. Earum quoque Qualitates, ut si bona? ipsa? sint, 
metiri Tu poteris. Prudentia Tua, Comparatione etiam aliarum 
Legum, et cum nullam tanta? Praestantiae in Orbe reperies, eas 
nedum bonas, sed Tibi optabilissimas, fore, necessario conn- 
teberis. 



ggti 



CAP. XIX. 

Solum jam unum de his, quibus agitatur Animus Tuus/ 
restat explanandum, viz. An, ut Civiles, ita et Anglorum Leges, 
frugi sint et efficaces isti Angliae Regno, ut illae Imperio, etiam et 
accommodae judicari mereantur. Comparaliones vero, Princeps, 
ut Te aliquando dixisse recolo, odiosce reputantur ; quo eas ag- 
gredi non delector; Tu, an aequalis sint ambae Leges meriti, 
unave altera celsuis Praeconium mereatur, non ex meo Judicio, 
sed ex his, in quibus earum differunt Sentential, efficacius carpere 
poteris Argumentum. Nam ubi conveniunt Leges ambae, aequalis 
Laudis ipsae sunt ; sed in Casibus, ubi ipsae dissentiunt, praestan- 
tioris Legis Praeconia digna Pensatione refulgent. Quare Casus 
hujusmodi aliquos jam in medium proferemus, ut quae Legum 
illarum eos justius meliusque definiat aequa Lance valeas pon- 
derare. Et primo, ex casibus maximi Ponderis Exemplum 
proponamus. 



CAP. XX. 

Si coram Judice Contendentes ad Litis perveniant Contesta- 
tionem, super materia Facti, quam Legis Angliae periti Exitum 
Placiti appellant ; Exitus hujusmodi Veritas per Leges Civiles, 
Testium Depositione probari debet, in qua duo Testes idonei 
sufficiunt. Sed per Leges Angliae, Veritas ilia non, nisi XII. 
Hominum de Vicinelo, ubi Factum hujusmodi supponitur, Sacra- 
mento, Judici constare poterit. Quaeritur igitur, quis horum du- 
orum Processuum tam diversorum rationabilior censeri debeat, 
et efficacior ad Veritatem, quae sic quaeritur, revelandam. Quia 
Lex, quae earn certius meliusque ostendere potest, praestantior in 
hoc est Lege altera, quae non tantae Efficaciae est et Virtutis; 
quare in hujus Rei Indagine sic procedimus. 



CAP. XXI. 

Per Leges Civiles, Pars, quae in Litis Contestationem affir- 
mativam dicit, Testes producere debet, quos ipse ad Libitum 



suum nominabit. Negativa autem probari non potest, viz. 
directe, licet possit per Obliquum : Exilis quippe creditur esse 
Potential, minoris quoque Industrial, qui de omnibus quos nos- 
cit Hominibus duos reperire nequit, ita Conscientia et Veritate 
vacuos, ut Timore, Amore, vel Coramodo, omni velint con- 
traire Veritati. Hos potest tunc ipse in Testes producere in 
Causa sua. Et si contra eos Pars altera dicere velit, vel contra 
eorura Dicta, non semper continget eos, eorum quoque Mores 
aut Facta, apud contradicere volentem, agnosci, ut ex eorum 
Foeditate et Vitiis Testes illi possit reprobari. Et dum eorum 
Dicta Affirmativam contineant, non facile poterunt ilia per Cir- 
cumstantias aut obliqua alia improbari : Quis tunc poterit suorum 
aut sui ipsius, sub Lege tali, vivere securus, dum cuilibet sibi 
inimicari volenti Lex tale praestat Subsidium? Et qui iniqui 
duo tarn incauti sunt, quo facti, de quo ipsi examinabuntur in 
initio, non, antequam in Testes producantur, oculte fingant Ima- 
ginem et Figuram, componant quoque eidem omnes Circum- 
stantias, quales sibi fuissent, si illud in Veritate constitisset ? 
" Prudentiores namque, ut dicit Dominus, sunt Filii hujus Mundi 
quam Filii Lucis." Sic Jesabel sceleratissima Testes duos, Filios 
Belial, contra Nabot in Judicio produxit, quo ipse vitam per- 
didit, et Achah Rex ejus Vineam possidebat. Sic duorum Senum 
etiam Judicum Testimonio, mortua fuisset pro Adulterio Uxor 
castissima Susanna, si non earn miraculose liberasset Dominus 
inexcogitabili Prudentia, quam et Natura non habuit Puer 
junior, nondum aetate provectus. Et si ipsos, Depositione sua 
varia, convicerat Puer ille esse falsarios ; quis, nisi solus Domi- 
nus, novisse poterit eos in Dictis suis taliter variaturos ? dum, 
non de Arboris Natura, sub qua imputatum Facinus fiebat, 
Lex aliqua eos arctabat reminisci. Quia Testes Sceleris cujus- 
que considerare non putantur omnia Umbracula et caetera vicina 
illi Facto, quae ad Aggravationem vel Detectionem Criminis 
illius minime operantur. Sed dum de Arborum Speciebus 
Judices illi nequam ultro deponentes variabant, eorum Dicta 
ipsos veritatis fuisse Praevaricatores demonstrabant ; quo et Tali- 
onis Pcenam merito incurrerunt. Nosti et Tu, Princeps divine, 
qualiter jam tarde Magister Johannes Fringe, qui postquam 
Annis tribus Sacerdotali functus est Officio, duorum iniquorum 
Depositione, qui eum antea Juvenculam quandam affidasse tes-. 
tati sunt, sacrum Presbyteratus Ordinem relinquere compulsus 
est, et Matrimonium cum Foemina ilia consummare. Cum quas 

P2 



228 

postquam Annis 14 moratus, Sobolem septimam suscitaverat, 
demum de Crimine laesae Majestatis in Tuam Celsitudinem 
conjurato convictus, subornatos fuisse Testes illos, et falsum 
dixisse Testimonium, in Mortis suae Articulo, coram omni 
Populo fassus est. Qualiter et saepe perverti Judicia, falsorum 
Testium medio, etiam sub optimis Judicibus, non est Tibi 
inauditum, nee incognitum Mundo, dum Scelus illud (proh 
Dolor !) creberrime committatur. 



CAP XXII. 

Non igitur contenta est Lex Francice, in Criminalibus, ubi 
Mors imminet, Reum Testibus convincere, ne Falsidicorura 
Testimonio Sanguis innocens condemnetur. Sed mavult Lex 
ilia Reos tales Torturis cruciari, quousque ipsi eorum Reatum 
confiteantur, quam Testium Depositione, qui saepe Passionibus 
iniquis, et quandoque Subornatione Malorum, ad Perjuria sti- 
mulantur. Quali Cautione et Astutia, Criminosi etiam et de 
Criminibus suspecti, tot Torturarum in Regno illo Generibus 
affliguntur, quod fastidit Calamus ea Literis designare. Quidam 
vero in Equueleis extenduntur, quo eorum rumpuntur Nervi, 
et venae in Sanguinis Fluenta prorumpunt. Quorundam vero, 
diversorum Ponderum Pendulis, dossolvuntur Compagines et 
Juncturae. Et quorundam gaggantur Ora, usque dum per ilia, 
tot Aquarum infundantur Fluenta, ut ipsorum Venter Montis 
tumescant more; quo tunc Venter ille, Fossorio vel simili per- 
cussus Instrumento, per os aquam illam evomat, ad instar 
Balenae, quae cum Halecibus et aliis Pisciculis mare absorbuit, 
Aquam despumat ad Altitudinem Arboris Pini. Piget (proh 
Pudor !) jam penna exquisitorum ad haec Cruciatuum enarrare 
immania. Nam eorum variatus Numerus vix notari poterit 
magna in Membrana, Leges etiam ipsae Civiles, deficiente Tes- 
tium Copia, in Criminalibus, Veritatem consimilibus extorquent 
Tormentis. Qualiter et faciunt etiam quamplurima Regna. Sed 
quis tarn duri Animi est, qui semel ab atroci tanto Torculari 
laxatus, non potius innocens ille omnia fateretur Scelerum 
Genera, quam Acerbitatem sic experti iterum subire Tormenti, 
et non semel mori mallet, dum mors sit ultimum Terribilium, 
quam toties occidi, et totidem Gehennales Furias morte ama- 



229 

riores sustinere? Et nonne, Princeps, Tu novisti Criminosum 
quendam, qui inter Tormenta hujusmodi militem Nobilem, pro- 
bum, et fidelem de Proditione quadam, super qua, ut asseruit, 
ipsi duo insimul conjurarunt, accusare, quod et constanter post- 
modum ipse fecit, a Torturis illis relaxatus, ne iterura eadem 
Tormenta ipsa ipse subiret. Sed demum, cum ex Poems illis 
laesus usque ad Mortis Articulum infirmaretur, ultimum quoque 
Viaticum, Christi videlicet Corpus, sumpsisset, juravit tunc 
super Corpus illud, et per Mortem, quam tunc protinus cre- 
didit se passurum, militem ilium innocentem fuisse, et immunem 
de omnibus in quibus eum accusavit ; tamen ait Pcenas, in quibus 
ipse Tempore Delationis suae fuerat, ita atroces exstitisse, quod 
priusquam eas iterum experiretur, etiam eundem Militem illc 
iterum accusaret, similiter et Patrem proprium, licet tunc in 
Mortis Limine, quam non credidit se posse evadere, fuerit 
constitutus ; nee vero ipse Mortem, quam tunc metuit, evasit. 
Sed demum suspensus, Tempore Mortis suae, ipsum Militem 
purgavit ab omni Crimine, de quo dudum defamavit. Taliter, 
proh Dolor, et quam plures alii miseri faciunt, non veritatis 
Causa, sed solum urgentibus Torturis arctati; quid tunc Cer- 
titudinis resultat ex Confessionibus taliter compressorum ? Caete- 
rum si innocens aliquis non immemor salutis aeternae, in hujus- 
modi Babylonis Fornace, cum tribus Pueris benedicat Domino, 
nee mentiri velit in Perniciem Animae suae, quo Judex eum 
pronunciet innocentem, nonne eodem Judicio Judex ille seipsum 
reum judicat omnis Saevitiae et Poenarum, quibus innocentem 
afflixit ? O quam crudelis est Lex .talis, quae dum innocentem 
dampnare nequit, Judicem ipsa condemnat? Vere non Lex 
Ritus talis esse perhibetur, sed potius semita ipsa est ad Gehen- 
nam. O Judex, quibus in Scholis didicisti te praesentem ex- 
hibere, dum Poenas luit Reus ? Executiones quippe Judiciorum 
in Criminosos per ignobiles fieri convenit; nam earum Actores 
infancies solent esse ipso Facto, quo et ipsi deinde ad Judicialem 
Apicem redduntur indigni. Non enim per Angelos, sed per 
Daemones, exequi facit Dominus Judicia sua, reddita in Damna- 
tos. Nee revera in Purgatorio cruciant Animas, quamvis prae- 
destinatas ad Gloriam, Angeli boni, sed mali. Maligni etiam 
Homines sunt, per quos Dominus in hoc Mundo miseris tribuit 
Malum Pcenae. Nam cum dixerat Deus, I. Regum, in Capitulo 
vicesimo secundo, " Ojiis decipet miki Ahab f" Malus erat 
Spjritus, ille, qui respondit, ',' Ego ero Spiritus Mendax in Ore 



230 

omnium Prophetarum ejus." Non enim decuit Spiritum bonum 
exequi talia, licet a Domino prodiit Judicium, quod Acliab Men- 
dacio deciperetur. Sed dicet Judex forsan, Ego nihil egi Mani- 
bus meis in Cruciatibus istis. Sed quid refert propriis facere 
Manibus, an praesentem esse, et quod factum est Mandato suo 
iterum atque iterum aggravare. Solum Magister Navis est, qui 
earn ducit ad Portum, licet ejus Mandato alii agitent Proram. 
Credo quod Vulnus, quo sauciatur Animus Judicis Pcenas hujus- 
modi infligentis, nunquam in Cicatricem veniet, maxime dum 
recolit Acerbitatem Pcenarum miseri sic afflicti. 



CAP. XXIII. 

Pr^eterea, si ex Contractibus, illatisve Injuriis, vel Htere- 
ditatis Titulo, Jus accreverit Homini agendi in Judicio : Si 
Testes non fuerint, vel si qui fuerint moriantur, succumbet ipse 
Agens in Causa sua, nisi Jus suum probare valeat inevitabilibus 
conjecturis quod facere crebro non contingit. Quare de Dominiis 
et aliis Possessionibus Jure Civili regulatis, similiter et in 
omnibus Actionibus cadentibus sub eodem Jure; Actiones Agen- 
lium pro Defectu Testium quam pluries suffocantur, ita quod 
earum vix Pars media optatum Finem sortiatur. Qualis tunc 
est Lex hujusmodi, quae injuratis taliter deficit in Justitia red- 
denda ? dubito an justa vocari mereatur, quia in eadem Lege 
scribitur, quod " Justitia, unicuique tribuit quod suum est," quod 
non facit Lex talis. 



CAP. XXIV. 

Exposita jam Forma, qua Leges Civiles de Veritate Facti 
in Judicio deducti Judicem erudiunt, superest ut Modum quo 
Leges Anglia hujusmodi Facti eliciunt Veritatem, etiam doceamus. 
Nam ambarum Legum Formulis contigue positis, Qualitates 
earundem lucidius eminebunt: Cum dicat Philosophus, quod 
" Opposita juxta se posita magis apparent." Sed in hoc, Ora- 
torum More (Prohemii loco) quaedam praenarrare congruet, 



231 

quorum Agnitione, deinde tractanda clarius patere queant ; quare 
sic procedimus. Regnum Angliae per Comitatus, ut Regnum 
Franciae per Ballivatus distinguitur ; ita ut non sit Locus in 
Anglia, qui non sit infra Corpus alicujus Comitatus. Comitatus 
quoque dividuntur in Hundreda, quae alicubi Wapentagia nun- 
cupantur. Hundreda vero dividuntur per Villas, sub quarum 
Appellatione continentur et Burgi atque Civitates Villarum etenim 
Metae non muris, ^Edificiis, aut stratis terminantur, sed Agro- 
rum Ambitubus, Territoriis Magnis, Hamiletis quibusdam, et 
multis aliiSj, sicut Aquarum, Boscorum et Vastorum Terminis, 
quae jam non expedit Nominibus designare ; quia vix in Anglia 
est Locus aliquis, qui non infra Villarum ambitus contineatur, 
licet privilegiati Loci quidam infra Villas de eisdem Villis Pars 
esse non censentur. Praeterea in quolibet Comitatu est Officiarius 
quidam unus, Regis Vicecomes appellatus, qui inter caetera sui 
Officii Ministeria omnium Mandata et Judicia Curiarum Regis 
in Comitatu suo exequenda exequitur, cujus Officium annate est, 
quo ei post Annum in eodem ministrare non licet, nee duobus 
tunc sequentibus Annis ad idem Officium reassumetur. Offi- 
ciarius iste sic eligitur. Quolibet Anno in Crastino Animarum, 
conveniunt in Scaccario Regis omnes Consiliarii ejus tam Domini 
Spirituales et Temporales, quam alii omnes Justiciarii, omnes 
Barones de Scaccario, Clericus Rotulorum, et quidam alii Offi- 
ciarii, ubi ii omnes communi Assensu nominant de quolibet 
Comitatu tres Milites vel Armigeros, quos inter caeteros ejusdem 
Comitatus ipsi opinantur melioris esse Depositionis et Famae, 
et ad Officium Vicecomitis Comitatus illius melius dispositos; 
ex quibus Rex unum tantum eligit, quem per Literas suas 
Patentes constituit Vicecomitem Comitatus de quo eligitur pro 
Anno tunc sequente ; sed ipse, antequam Literas illas recipiat, 
jurabit super Dei Evangelia, inter Articulos alios, quod bene, 
fideliter, et indifferenter exercebit et faciet Officium suum toto 
Anno illo, neque aliquid recipiet Colore aut Causa Officii sui, 
ab aliquo alio quam a Rege. His jam sic praesuppositis, ad 
eorura, quae quaerimus, Indaginem procedamus. 



CAP. XXV. 

Quotiescunque Contendentes in Curiis Regis Anglia? ad 
Exitum Placiti super Materia Facti devenerint, concito Justi- 



232 

ciarii per Breve Regis scribunt Vicecomiti Comitatus, in qtio 
Factum illud fieri supponitur, quod ipse venire faciat coram 
eisdem Justiciariis ad certum Diem per eos limitatum, duodecim 
probos et legates Homines, de Vicineto, ubi illud Factum suppo- 
nitur ; qui neutram Partium sic placitantium ulla AfBnitate attin- 
gunt ; Ad recognoscendum super eorum Sacramenta, si Factum 
illud factum fuerit, sicut una earundem Partium dicit ; vel non, 
sicut altera Pars negat. Quo adveniente Die, Vicecomes retur- 
nabit Breve praedictum coram eisdem Justiciariis, una cum 
Panello Nominum eorum, quos ipse ad hoc summonuit, quos 
(si venerint) utraque Pars recusare poterit dicendo, quod Vice- 
comes Panellum illud favorabiliter fecit pro Parte altera, viz. de 
Personis minus indifFerentibus : Qua? Exceptio, si comperta 
fuerit vera per Sacramentum duorum Hominum de eodem 
Panello ad hoc per Justiciarios electorum, mox Panellum illud 
quassabitur; et Justiciarii tunc scribent Coronatoribus ejusdem 
Comitatus quod ipsi novum faciant Panellum. Quod cum fece- 
rint, si et illud consimiliter repertum fuerit vitiatum, etiam 
et illud quassabitur. Et tunc Justiciarii eligent duos de Clericis 
Curiae illius, vel alios de eodem Comitatu, qui in Praesentia Curia? 
per eorum Sacramenta facient indifferens Panellum, quod deinde 
per nullam Partium illarum calumniabitur ; sed cum venerint 
sic impanellati in Curia, quaelibet Partium excipere potest contra 
Personam cujuscunque eorum, sicut et potest in omni Casu 
et omni Tempore, quo aliquis qualitercunque impanellatus com- 
paruerit in Curia super Veritate Exitus hujusmodi juraturus, 
dicendo, quod impanellatus ille est consanguineus vel Affinis 
Parti alteri, vel Amicitia quacunque tali sibi conjunctus, quod 
indifferens ipse non est ostendere inter eos Veritatem. Qualium 
Exceptionum tot sunt Genera et Species, quod non licet eas 
brevi explicare Sermone. Quarum si aliqua reperta fuerit vera, 
non tunc jurabitur ille contra quern Exceptio ilia proponitur, 
sed cancellabitur Nomen ejus in Panello. Sic quoque fiet de 
omnibus Nominibus impanellatorum quousque XII. eorum juren- 
tur ita indifferentes, quod versus eos neutra Partium habeat 
aliquam Materiam Calumpniae. Horum autem XII. ad minus 
IV. erunt de Hundredo, ubi Villa in qua Factum, de quo con- 
tenditur, fieri supponitur, sita est; et quilibet Juratorum hujus- 
modi habebit Terras vel Redditus pro Termino Vita, suae, ad minus 
ad Valorem annuum XL. s. Et hie Ordo observatur in omnibus 
Actionibus et Causis Criminalibus, realibus et personalibus, prse- 



233 

terquam ubi Damna vel Debitum in personalibus non excedunt 
XL. Marcas Monetae Anglise, quia tunc non requiritur, quod 
Juratores in Actionibus hujusmodi tantum expendere possint. 
Habebunt tamen Terram vel Redditum ad Valorem competen- 
tem, juxta Discretionem Justiciariorum, alioquin ipsi minime 
jurabuntur, ne per Inediam et Paupertatem Juratorum hujus- 
modi, de facili valeant corrumpi aut subornari. Et si per tales 
Exceptiones, tot Juratorum Nomina in Panello cancellentur, 
quod non remaneat Numerus sufficiens ad faciendum inde jura- 
tam, tunc mandabitur Vicecomiti per Breve Regis, quod ipse 
apponat plures Juratores, quod et saepius fieri potest, ita quod 
Inquisitio Veritatis super Exitu Placiti non remanebit ob De- 
fectum Juratorum. Et haec est Forma, qualiter Juratores et 
Veritatis hujusmodi Inquisitores eligi debent in Curia Regis, 
similiter et jurari ; quare, quomodo ipsi de Veritate ilia decenda 
onerari. debent et informari, jam restat ut quaeramus. 



CAP. XXVI. 

Juratis demum in Forma praedicta XII. probis et lega- 
libus Hominibus habentibus ultra Mobilia sua Possessiones, 
ut praedicitur, sufficientes, unde eorum Statum ipsi continere 
poterunt, et nulli Partium suspectis nee invisis, sed eisdem vici- 
nis, legetur in Anglico coram eis per Curiam totum Recordum et 
Processus Placiti, quod pendet inter Partes, ac dilucide expo- 
netur eis Exitus Placiti, de cujus veritate Jurati illi Curiam 
certificabunt ; quibus peractis, utraque Partium per se vel Con- 
siliarios suos, in Prsesentia Curiae, referet et manifestabit eisdem 
Juratis omnes et singulas Materias et Evidentias, quibus eos 
docere se posse credit Veritatem Exitus talker placitati. Et 
tunc adducere potest utraque Pars coram eisdem Justiciariis 
et Juratis omnes et singulos Testes, quos pro Parte sua ipsa 
producere velit, qui super sancta Dei.Evangelia, per Justiciarios 
onerati, testificabuntur omnia qua? cognoscunt probantia Veritatem 
Facli, de quo Partes contendunt. Et si Necessitas exegerit; 
dividantur Testes hujusmodi, donee ipsi deposuerint quicquid 
Velint, ita quod Dictum unius non docebit aut concitabit eorum 
alium ad consimiliter testificandum. Quibus consummatis, post- 



234 

quam Juratores illi deinde ad eorum Libitum, super Veritate 
Exitus hujusmodi, Deliberatione quantam ipsi optabunt Collo- 
quium habuerint, in Custodia Ministrnrum Curiae, in Loco eis ad 
hoc Assignato, ne interim eos aliqui subornare valeant, revenient 
illi in Curiam, et certificabunt Justiciaries super Veritate Exitus 
sicjuncti, in Praesentia Partium (si interesse velint) et maxime 
petentis. Quorum Juratorum Dictum per Leges Angliae Vere- 
diclum nuncupatur, et tunc secundum hujusmodi Veredicti Qua- 
litatem, Justiciarii reddent et formabunt judicium suum. Tamen, 
si Pars altera, contra quam veredictum hujusmodi prolatum est, 
conqueratur se per illud injuste esse gravatum, prosequi tunc 
potest Pars ilia, versus Juratores illos, et versus Partem quae 
obtinuit, Breve de Attincta, virtute cujus, si compertum fuerit 
per Sacramentum XXIV. Hominum, in Forma praenotata, retor- 
natorum, electorum, et juratorum, qui multo majora habebunt 
Patrimonia, quam Juratores primi, quod iidem primi Juratores 
falsum facerunt Sacramentum, Corpora eorundem primorum Jura- 
torum Prisonae Regis committentur, Bona eorum confiscabuntur, 
ac omnes Possessiones eorundem in Manus regis capientur, Domus 
quoque eorum et iEdificia prosternentur, Bosci succidentur, et 
Prata arabuntur, ipsi etiam Juratores primi ex tunc infames 
erunt, nee alicubi recipientur in Testimonium Veritatis : et Pars, 
quae succubuit in priori Placito, restituetur ad omnia, quae ipsa 
perdidit Occasione ejus. Quis tunc (etsi immemor Salutis Animae 
suae fuerit) non Formidine tantae Pcenae, et Verecundia tantae 
Infamiae, Veritatem non diceret sic juratus ? Et si unus forsan 
tantus sui Honoris prodigus esse non pepercerit, aliqui tamen 
Juratorum tantorum Famam suam non negligent, neque Bona 
et Possessiones suas taliter distrahi patientur, propria Culpa sua. 
Nonne jam hie Ordo revelandi Veritatem, potior et efficacior est, 
quam est Processus, qualem pariunt Civiles Leges? non hie 
pereunt Causae aut Jus alicujus, per Mortem aut ob Defectum 
Testium; non hie producuntur Testes ignoti, conductitii, pau- 
peres, vagi, inconstantes, aut quorum Conditiones vel Malitiae 
ignorantur. Vicini sunt Testes isti, de propriis vivere potentes, 
Famae integrae, et Opinionis illaesae, non per Partem in Curiam 
ducti, sed per Officiarium nobilem et indifferentem electi, et 
coram Judice venire compulsi. Isti omnia sciunt, quae Testes 
deponere norunt, et isti Testium productorum agnoscunt Con- 
stantias, Inconstantiasque et Famam. Quid ultra! vere nihil 
est, quod Veritatem dubii, de quo contendi poterit, detegere 



235 

valebit, quod Juratoribus talibus latere quomodo libet potest 
aut ignorari, dummodo possibile sit illud venire posse in Agni- 
tionem humanam. 



CAP. XXVII. 

Sed quomodo in Criminalibus Leges Angliae scrutantur 
Veritatem etiam rimare pernecessarium est, ut et in eis plenarie 
agnita ambarum Legum Forma, quae earum efficacius latentem 
revelat Veritatem certius agnoscamus. Si Reus quispiam de 
Felonia aut Proditione in Anglia rettatus, Crimen suum coram 
Judicibus dedicat, mox Vicecomes Comitatus, ubi Facinus illud 
commissum est, venire faciet coram eisdem Judicibus viginti 
quatuor probos et Legales Homines de Vicineto Villas, ubi illud 
factum est, qui rettatum ilium nulla Affinitate attingunt, et 
quorum quilibet C. s. habeat Terra; et Reditus, ad certificandum 
Judices illos super Criminis illius Veritate. Quibus comparen- 
tibus, Rettatus ille eos calumpniare potest, eadem Forma, qua 
in Actionibus realibus fieri debere superius describitur. Et 
insuper Reus ipse in Favorem vita? sua; calumpniare potest XXXV. 
Homines, quos ipse maxime formidat, qui ad ejus Calumpniam 
cancellabuntur in Panello, aut Signis talibus notabuntur, quod 
(ut Verbis Legis utar) illi super eum non transibunt, licet ipse 
nullam Causam assignare sciat Exceptionis seu Calumpniae suae. 
Quis tunc mori posset inique in Anglia pro Crimine, cum tot 
Juvamina habere ille poterit ob favorem Vita? suae, et non nisi 
Vicini ejus, probi et fideles Homines, versus quos ipse nullam 
habet Materiam Exceptionis, eum condemnare poterunt ? MaU 
lem revera viginti facinorosos Mortem Pietate evadere, quam 
justum unum injuste condemnari. Nee tamen Reum quempiam 
sub hac Forma, Reatus sui Pcenam evadere posse suspicandum 
est, dum ejus Vita et Mores Timori deinceps erunt eis, qui 
eum sic purgarunt a Crimine. In hoc equidem Processu nihil 
est crudele, nihil inhumanum, nee laedi poterit innocens in Cor- 
pore aut Membris suis. Quare nee formidabit ille Calumpniam 
Inimicorum ejus, quia non torquebitur iste ad Arbitrium ip- 
sorum. Sub hac igitur Lege vivere quietum et securum est. 
Judica ergo, Princeps optime, quae Legum harum Tibi elec- 
tissima foret, si Tu privatam spirares Vitam. 



236 



CAP. XXV11I. 

Cui Princeps, Arduum ambiguumve, Cancellarie, non con- 
spicio, quod morosum me titubantemve redderet in Electione 
Rei, quam interrogas. Nam quis non sub Lege, qua securam 
ducere posset vitam, vivire potius eligeret, quam sub Lege tali, 
sub qua inermem, indefensumque se semper redderet Saevitiae 
omnium Inimicorum ejus ? Vere tutus quisquam esse non po- 
tent in Corpore aut in Bonis, quem Inimicus ejus (in omni 
Causa) convincere poterit Testibus duobus etiam ignotis, per 
ipsummet electis et productis. Et licet quis Mortem, per Dicta 
eorum, subire non cogatur, parum tamen relevatur ipse qui 
Mortem evasit, Contractione Nervorum et Membrorum suorum, 
atque Corporis ejus Languore perpetuo. Tali revera Discrimini 
impellere potest Inimici Astutia omnem Hominem qui sub Lege 
degit, quam tu jamdudum explicasti. Sed tale Malum operari 
nequeunt Testes, qui Depositiones suas faciunt in Praesentia 
duodecim Fide dignorum Virorum facto Vicinorum, de quo 
agitur, et circumstantiis ejus ; qui et noscunt eorundem Testium 
mores, maxime si vicini ipsi fuerint, noscunt etiam et si ipsi 
sint Credulitate digni. Omnes etiam duodecim tales latere 
omnino non poterit, quicquid actum est, per aut inter Vicinos 
eorum. Nosco namque Ego certius, quae jam aguntur hie in 
Borro, ubi sum modo conversatus, quam quae in Anglia fiunt. 
Nee effugere posse puto Notitiam probi Viri ea, quae aguntur, 
licet quodammodo occulte, prope Domicilium ejus. Sed tamen 
cur praedicta Lex Angliae, quae tarn frugi et optabilis est, non 
est toti Mundo communis, vehementer admiror. 



CAP. XXIX. 

Cancellarius. Juvenis recessisti, Princeps, ab Anglia, 
quo Tibi ignota est Dispositio et Qualitas Terrae illius, quas si 
agnoveris, et caeterarum Regionum Emolumenta Qualitatesque 
eisdem comparaveris, non admiraberis ea, quibus jam agitur 
Animus tuus. Anglia sane tam fertilis est, quod Quantitate ad 
Quantitatem comparata, ipsa caeteras omnes quasi Regiones exsu- 
perat ubertatc Frucluum ; etiam suum ultro ipsa profert, vix 



237 

Industria Hominis concitata. Nam Agri ejus, Campi, Sallus, et 
Nemora, tanta Foecunditate germina ebulliunt, ut inculta ilia saepe 
plus Commodi afferant Possessoribus suis, quam arata, licet feri- 
lissima ipsa sint Segetum, et Bladorum. Includuntur quoque in 
Terra ilia Pasturarum Arva, Fossatis et Sepibus, desuper Arbo- 
ribus plantatis, quibus muniuntur a Procellis et aestu Solis eorum 
Greges et Armenia ; ipsaeque Pasture? ut plurimum irriguae sunt, 
quo infra earum Claustra reclusa Animalia Custodia non egent 
per Diem, nee per Noctem. Nam ibi Lupi non sunt, Ursi, nee 
Leones ; quare de Nocte Oves eorum incustoditae in Campis 
recumbunt, in Caulis et Ovilibus, quibus impinguantur Terras 
eorum. Unde Homines Patriae illius vix operis Sudore gravantur, 
quare spiritu ipsi magis vivunt, et fecerunt Patres antiqui, qui 
pascere malebant Greges quam Animi Quietem Agricultural sol- 
licitudine turbare. Ex quibus Homines Regionis istius apti magis 
redduntur et dispositi ad discernendum in Causis, quae magni 
sunt Examinis, quam sunt Viri, qui Telluris Operibus inhabi- 
tantes ex Ruris Familiaritate Mentis contrahunt Ruditatem. Regio 
etiam ilia ita respersa, refertaque est Possessoribus Terrarum et 
Agrorum, quod in ea Villula tarn parva reperiri non poterit, 
in qua non est Miles, Armiger, vel Pater familias, qualis ibidem 
Franklain vulgariter nuncupatur, magnus ditatus Possessionibus ; 
necnon libere tenentes alii, et Valecti plurimi, suis Patrimoniis 
sufficientes ad faciendum Juratam in Forma praenotata. Sunt 
namque Valecti diversi in Regione ilia, qui plus quam sexcenta 
Scuta per Annum expendere possunt; quo Juratce superius 
descriptae saepissime in Regione ilia fiunt, praesertim in ingen- 
tibus Causis, de Militibus, Armigeris et aliis, quorum Posses- 
siones in universo excedunt duo millia scutorum per Annum. 
Quari cogitari nequit tales subornari posse, vel perjurari velle, 
nedum ob Timorem Dei, sed et ob Honorem suum conser- 
vandum, et Vituperium et Dampnum quoque inde consequuti- 
vum, evitandum, etiam ne eorum Haeredes ipsorum ledantur 
Infamia. Taliter, Fili Regis, disposita, inhabitataque non sunt 
aliqua alia Mundi Regna. 

Nam licet in eis sint Viri magnae potentiae, magnarum Opum 
et Possessionum, non tamen eorum unus prope moratur ad alte- 
rum, ut in Anglia tanti morantur Viri, nee tanta, ut ibi, Here- 
ditorum est Copia et Possidentium Terras. 

Vix enim in Villata una Regionum aliarum reperiri poterit 
Vir unus Patrionio sufficiens, ut in Juratis ipse ponatur. Nam 



23$ 

raro ibidem, aliqui praeter nobiles reperiuntur Possessores Agro- 
rum, aliorumve immobilium, extra Civitates et muratas Villas. 
Nobiles quoque ibidem Pasturarum Copiam non habent, et vineas 
colere aut Aratro Manus apponere Statui eorum non convenit, 
tamen in Vineis et Terris arabilibus consistit Substantia Posses- 
sionum eorum, exceptis solum Pratis quibusdam adjacentibus 
magnis Ripariis, et Exceptis Boscis, quorum Pasturae communes 
sunt Tenentibus et Vicinis suis. Quomodo tunc in Regionibus 
talibus Jurata fieri poterit ex duodecim probis Hominibus de 
Vicineto, ubi Factum aliquod in Judicio deducitur, cum vicini 
dici non poterunt, qui tanta Distantia distinguuntur ? Vero 
remotos multum a Facto duodecim Juratos ibidem esse oportebit, 
postquam Reus in Regionibus illis triginta quinque (sine assig- 
nata Causa) de propinquioribus calumniaverit. Quare, aut de 
multum remotis a Facto, de quo contenditur, qui Veritatem 
Facti non agnoscunt, in Regnis illis oportebit facere Juratam, 
aut de Pauperibus, quibus non est verecundia Infamiae, nee 
Timor Jacturae bonorum suorum, cum ipsa non sint ; ipsi etiam, 
Rusticitatis Ruditate obcaecati, Veritatis claritatem nequeunt 
intueri. 

Non igitur mireris, Princeps, si Lex, qua in Anglia Veritas 
inquiritur, alias non pervagetur Nationes, ipsae namque, ut An- 
glia, facere nequeunt sufficientes consimilesque Juratas. 



CAP. XXX. 

Tunc Princeps. Comparationes odiosas esse licet dixerimus, 
Lex tamen Civiles, in Comparatione per Te facta, omni se 
purgavit a Crimine : Quia, licet ei Legem Angliae tu praetuleris, 
Odium inde ipsa non meretur, dum neque earn neque Conditores 
ejus increpasti ; sed solium Pairiam, ubi ulla regit, Causam esse 
demonstrasti, quod non tarn obtabili Processu, ut Lex Angliae, 
ipsa in dubiis elicit Veritatem. Legem vero Angliae, in Casu jam 
per te disputato, accommodatiorem esse Regno illi, quam est Lex 
Civilis, ambigere non sinimur, quo earn pro Civili commutare 
non appetimus : Sed tamen haec Legis Angliae Praeeminentia ab 
alterius Crimine non evenit, solum enim earn Angliae Fertilitas 
sic causavit. 



239 



CAP. XXXI. 

Sed, licet non infime, Cancellarie, nos dilectet Forma, qua 
Leges Angliae in Contentionibus relevant Veritatem, tamen, 
an Modus ille sacrae repugnet Scripturae, vel non, paululum 
agitamur. Ait namque Dominus Pharisaeis, Johannis VIII. "In 
Lege vestra scriptum est, quia duorum Hominum Testimonium 
verum est;" et huic applaudens Dominus inquit, "Ego sum qui 
Testimonium perhibeo de me ipso, et Testimonium perhibet de me, 
qui misit me, Pater." Pharisaei quippe Judaei erant, unde idem 
erat dicere in Lege vestra scriptum est, et in Lege Mosaica 
(quae a Domino per Mosen Filiis Israel prolata fuit) scriptum est. 
Quare huic Legi contraire, Legi est Divinae refragari, quo sequi- 
tur, quod Lex Angliae, si ab hac Lege discedat, a Lege divina, 
cui reluctari non licet, ipsa discedit. Scribitur etiam, Matthaei 
XVIII. Quod Dominus (loquens de Correctione fraterna) inter 
alia sic ait, " Si autem non te audierit frater tuus, adhibe tecum 
adhuc unum aut duos, tit in Ore duorum vel trium stet omne 
verbum." Si in Ore duorum vel trium, Dominus omne Verbum 
statuerit, frustra plurium Hominum quaeritur in Dubiis Vere- 
dictum. Xemo enim potest melius aut aliud Fundamentum 
ponere, quam posuit Dominus. 

Haec sunt, Cancellarie, quae me, de Legis Angliae Processu 
in Probationibus, aliquantulum conturbant. Quare, quid his 
respondendum est a Te, doceri deposco. 



CAP. XXXII. 

Cancellarius. Non his, quibus turbaris, Princeps, con- 
trariantur Leges Angliae, licet aliter quodammodo ipsae in dubiis 
eliciant veritatem. Quid duorum Hominum Testimonio obest 
Lex ilia Generalis Concilii, qua cavetur, ut non nisi duodecim 
Testium Depositione Cardinales de Criminibus convincantur ? 
Si verum est duorum Testimonium, a fortiori Testimonium 
duodecim verum judicari debet, dicente Juris Regula, " Plus 
semper in se continet quod est minus." Supererogationis Meritum 
promittebatur Stabulario, si plus quam duos, quos recepit, 



340 

Denarios, ipse in vulnerati Curationem erogasset. Nonrie plus 
quam duos aut tres Testes producere oportebit quempiam, qui 
absentem se fuisse probare nititur, Tempore Criminis sibi im- 
positi, quod per duos aut tres Testes Adversarius ejus probavit, 
vel probare paratus est? Sic et qui Testes de Perjurio con- 
vincere satagit, multo illis plures producere necesse habet, quo 
non semper II. vel III. Hominum Testimonium verum esse 
judicabitur ; sed intelligenda est Lex ilia, quod minore Testiutn 
Numero quam II. Veritas in dubiis non debet exquiri, ut patet 
per Bernardum Extra, de Testi. ca. licet in Glossa ordinaria, 
ubi ipse assignat diversos Casus, in quibus per Leges, plures 
quam tres oportet producere Testes, viz. in aliquibus eorum V. 
et in aliquibus septem. Per duos etiam Testes Veritatem probari 
posse, cum non aliter ipsa pateret, utique Leges Angliae affir- 
mant. Nam si quae supra altum Mare extra Corpus cujuslibet 
Comitatus Regni illius fiant, quae postmodum in Placito coram 
Admirallo Angliae deducantur, per Testes ilia juxta Legum 
Angliae Sanctiones probari debent. Consimiliter quoque coram 
Constabulario et Mariscallo Angliae fieri solitum est de facto, 
quod in Regno alio actum est, dummodo ad Jurisdictionem 
Curiae Constabularii Cognitio ejus pertineat. Etiam et in uriis 
quarundam Libertatum in Anglia, ubi per Legem Mercatoriam 
proceditur, probant per Testes Contractus inter Mercatores extra 
Regnum factos. Quia in Casibus his non reperiuntur Vicini, 
per quorum Sacramenta Juratae ex duodecim Hominibus fieri 
possunt, prout de Contractibus et aliis Casibus infra Regnum 
Angliae emergentibus, est fieri consuetum. Similiter, si carta, 
in qua Testas nominantur, deducatur in Curia Regis, Processus 
tunc fiet erga Testes nominantur, Deducatur in Curia Regis, 
Processus tunc fiet erga Testes illos, ipsi quoque recognoscent 
simul cum XII. Juratoribus per eorum Sacramenta utrum charta 
ilia sit factum ejus, cujus supponitur, annon. Quare, Legem, 
qua Testibus Veritas extorquetur, Lex Angliae non condemnat, 
maxime cum Necessitas id deposcat: quia et sic faciunt ipsae 
Leges Angliae nedum in Casibus jam notatis, sed etiam in qui- 
busdam Casibus aliis, quos non expedit hie notare. Sed per 
Testes solum Lex ipsa nunquam Litem dirimit, quae per Jura- 
tam XII. Hominum decidi poterit, cum sit modus iste ad veri- 
tatem eliciendam multo potior et efficacior, quam est Forma 
aliquarum aliarum Legum Orbis, et remotior [a Corruptionis et 
Subornationis periculo. Nee potest haec procedendi Forma in 



241 

Causa aliqua ob Defectum Testium deperire, eque Testium 
(si qui fuerint) Attestatio Effectum debitum non sortiri, nee 
perjurari possunt duodecim Homines hujusmodi, quin pro eorum 
Crimine ipsi acerbissime puniantur, et nihilominus Pars, per 
eorum Depositionem gravata, Remedium debitum consequetur: 
ac, non fient haec per extraneorum aut ignotorum Hominum 
Arbitrium aut Dictamen, sed per proborum Nobilium, et Fide 
dignorum, vicinorum Partibus, Sacramentum, quibus Partes illae 
nullam habent Causam Calumpniae aut Diffidentiae de eorum 
Dicto. O quam horrendum et detestabile Discrimen saepe 
aeeidit ex Forma per Depositionem Testium procedendi ! Nonne, 
si quis clandestinum contrahat Matrimonium, et postea coram 
Testibus Mulierem aliam ipse affidaverit, cum eadem consum- 
mare Matrimonium arctabitur in Foro contentioso, et postea in 
paenilentiali Foro judicabitur ipse concumbere cum prima, si 
debite requiratur, et poeitere debet quoties ex Actione propria 
concubuerit cum secunda, licet in utroque Foro Judex fuerit 
Homo unus et idem. Nonne in hoc Casu, ut in Job scribitur, 
Perplexi sunt Testiculi Leviathan ?" Proh Pudor, vere perplexi 
sunt; nam cum neutra Mulierum harum, neque cum alia con- 
trahens iste extunc concumbet, sine Animadversione in Foro 
Contendentium et Poenitentium. Quale Malum, Inconveniens, 
aut Discrimen per Modum et Formam Processus Legis Angliae 
impossibile est in Casu aliquo evenire, etiam si Leviathan 
ipse ea generare nitatur. Nonne vides jam, Princeps clarissime, 
Leges Angliae tanto magis clarescere, quanto eisdem Tu amplius 
reluctaris ? 



CAP XXXIII. 

Princeps. Video, inquit, et eas inter totius Orbis Jura 
(in Casu, quo tu jam sudasti) praefulgere considero, tamen Pro- 
genitorum meorum Angliae Regum quosdam audivimus, in Le- 
gibus suis minime delectatos, satagentes proinde Leges Chiles 
ad Angliae Regimen inducere, et patrias Leges repudiare fuisse 
conatos: horum revera Consilium vehementer admiror. 



Q 



242 



CAP. XXXIV. 

Cancellariub. Non admirareris, Princeps, si Causam hujus 
Conaminis Mente sollicita pertractares. Audisti namque supe- 
rius quomodo inter Leges Civiles praecipua Sententia est, maxima 
sive Regula, ilia quae sic canit Quod Principi placuit, Legis habet 
vigorem j" qualiter non sanciunt Leges Angliae, dum nedum 
Regaliler, sed et Politice Rex ejusdem dominatur in Populum 
suum, quo ipse in Coronatione sua ad Legis suae observantiam 
astringitur Sacramento, quod Reges quidam Angliae aegre feren- 
tes, putantes proinde se non libere dominari in Subditos, ut 
faciunt Reges Regaliter tantum principantes, qui Lege Civilij 
et potissime praedicta Legis illius Maxima regulant Plebem suam, 
quo ipsi ad eorum Libitum Jura mutant, nova condunt, Pcenas 
infligunt et Onera imponunt Subditis suis, propriis quoque 
Arbitriis, Contendentium, cum velint, dirimunt Lites. Quare, 
moliti sunt ipsi Progenitores Tui hoc Jugum Potiticum objicere, 
ut consimiliter et ipsi in subjectum Populum Regaliter tantum 
dominari, sed potius debacchari queant ; non attendentes, quod 
aequalis est utriusque Regis Potentia, ut in praedicto Tractatu 
de Natura Legis Natures docetur, et quod non Jugum, sed 
Libertas est, Politice regere Populum, Securitas quoque maxima 
nedum Plebi, sed et ipsi Regi, AUevatio etiam non minima 
Solicitudinis suae. Quae ut Tibi apertius pateant, utriusque 
Regiminis Experientiam percunctare, et Regimine tantum Regali,. 
qualiter Rex Franciae principatur in Subditos suos, Exordium 
sumito ; deinde, a Regalis et Politici Regiminis Effectu, qualiter 
Rex Angliae dominatur in sibi subditos Populos, Experientiam 
quaere. 



CAP. XXXV. 

Reminiscere, Princeps divine, qualiter Villas et Oppida 
Regni Franciae Frugum opulentissima, dum ibidem peregrina- 
baris, conspexisti, Regis Terra? illius Hominibus ad Anna, et 
eorum Equis ita onusta, ut vix in eorum aliquibus quam magnis 
Oppidis Tu hospitari valebas : ubi ab Incolis didicisti, Homines 



243 

illos, licet in Villa una per Mensem aut duos perhendinaverint, 
nihil prorsus pro suis aut Equorum suorum Expensis solvisse, 
aut solvere velle ; sed, quod pejus est, arctabant Incolas villarum 
et Oppidorum, in qua? descenderant, sibi de venis, Carnibus, 
et aliis, quibus indigebant, etiam carioribus Necessariis quam 
ibi reperiebantur, a circumvicinis Villatis, suis propriis Sump- 
tibus providere. Et si qui sic facere renuebant, concito Fustibus 
ca?si propere hoc agere compellebantur ; ac demum consumptis 
in Villa una Victualibus, Focalibus, et Equorum praebendis, 
ad Villam aliam Homines illi properabant, earn consimiliter 
devastando, nee Denarium unum pro aliquibus Necessariis suis, 
etiam aut Concubinarum suarum, quas in magna Copia secum 
semper vehebant, vel pro sotularibus, Caligis, et aliis hujusmodi, 
usque ad minimam earum Ligulam solverunt, sed singulas 
suas qualescunque Expensas Habitatores Villarum, ubi moras 
fecerunt, solvere coegerunt. Sicque et factum est in omnibus 
Villis et Oppidis non muratis totius Regionis illius, ut non sit ibi 
Villula una expers de Calamitate ista, quae non semel aut bis in 
Anno, hac nephanda pressura depiletur. Praeterea non patitur 
Rex quenquam Regni sui Salem edere, quern non emat ab ipso 
Rege, Pretio, ejus solum Arbitrio, assesso. Et si insulsum 
Pauper quivis mavult edere, quam Salem excessivo Pretio com- 
parare, mox compellitur ille, tantum de Sale Regis ad ejus 
Pretium emere, quantum congruet tot Personis quot ipse in 
Domo sua fovet. Insuper omnes Regni illius Incolae dant, omni 
Anno, Regi suo quartam Partem omnium Vinorum quae sibi 
accrescunt ; et omnis Caupo quartum Denarium Pretii Vinorum, 
quae ipse vendit; et ultra haec, omnes Villa? et Burgi solvunt 
Regi annuatim ingentes Summas super eos assessas, pro Sti- 
pendiis Hominum ad Arma ; sic quod Armata Regis, quae quam 
magna semper est, pascatur annuatim de Stipendiis suis, per 
Pauperes Villarum, Burgorum, et Civitatum Regni. Et ultra 
haec, quaelibet villa semper sustinet Sagittarios duos ad minus, 
etaliquae plures in omni Apparatu, et Abilimentis sufficientibus 
ad serviendum Regi in Guerris suis, quoties sibi libet eos sum- 
monere, quod et crebro facit; ac iis non ponderatis maxima 
Tallagia alia sunt omni Anno assessa ad opus Regis, super 
quamlibet Villam ejusdem Regni, de quibus non uno Anno ipsi 
alleviantur. Hiis et nonnullis aliis Calamitatibus Plebs ilia la- 
cessita in miseria non minima vivit, Aquam quotidie bibit, nee 
alium, nisi in solemnibus Festis, Plebeii gustant Liquorem. 

q2 



244 

Froccis sive Collobitis de Canabo ad modum Panni Saccorum 
teguntur. Panno de Lana, praeterquam de Vilissima, et hoc 
solum in Tunicis suis subtus Froccas Mas, non utuntur, neque 
Caligis nisi ad Genua discooperto Residuo Tibiarum. Mulieres 
eorum nudipedes sunt exceptis Diebus festis, Carries non come- 
dunt, Mares aut Fceminae ibidem praeter Lardum Baconis, quo 
impinguant Pulmentaria sua in minima Quantitate. Carnes 
assatas coclasve allias ipsi non gustant, praeterquam interdum de 
Intestinis et Capitibus Animalium pro Nobilibus et Mercatoribus 
occisorum. Sed Gentes ad Arma comedunt Alitilia sua, ita ut 
vix Ova eorum ipsis relinquantur, pro summis vescenda Deliciis. 
Et si quid in Opibus eis aliquando accreverit, quo locuples eorum 
aliquis reputetur, concito ipse ad Regis Subsidium plus vicinis 
suis caeteris oneratur, quo extunc convicinis caeteris ipse aequa- 
bitur paupertate. Haec, ni fallor, Forma est Status Gentis 
plebanae Regionis illius, Mobiles tamen non sic Exactionibus 
opprimuntur. Sed si eorum aliquis calumniatus fuerit de Cri- 
mine, licet per Inimicos suos, non semper coram Judice ordinario 
ipse convocari solet: Sed quam saepe in Regis Camera, et alibi 
in privato Loco, quandoque vero solum per Internuncios, ipse 
inde alloqui visus est, et mox ut Criminosum eum Principis 
Conscientia, Relatu aliorum judicaverit, in Sacco positus, absque 
Figura Judicii, per Praepositi Mariscallorum ministros noctanter 
in Flumine projectus submergitur, qualiter et mori audivisti 
major em multo numerum Hominum, quam qui legitimo Processu 
Juris convicti extiterunt. Sed tamen, quod Principi placuit 
(juxta Leges Civiles) Legis habet Vigorem. Etiam et alia 
Enormia hiis similia, ac quaedam hiis deteriora, dum in Francia, 
et propre Regnum illud conversatus es, audisti, non alio, quam 
Legis illius, Colore, detestabiliter, damnabiliterque perpetrata, 
quae hie inserere, nostrum nimium Dialogum protelaret : Quare, 
quid Effectus Legis Politicae et Regalis, quam quidam Progeni- 
torum Tuorum pro Lege hac Civili commutare nisi sunt, ope- 
ratus est in Regno Angliae, a modo visitemus, ut utraque Legum 
Experientia doctus, quae earum Tibi eligibilior sit, ex earum 
Effectibus elicere valeas, cum (ut supra memoratur) dicat Phi- 
losophus, quod, ", Opposita, juxta se posila, magis apparent." 



245 



CAP. XXXVI. 

In Regno Angliae, nullus perhendinat in alterius Domo invito 
Domino, si non in Hospitiis publicis, ubi tunc pro omnibus, quae 
ibidem expendit, ipse plenarie solvet ante ejus abinde Recessum '■ 
nee impune quisque Bona alterius capit sine Voluntate Propri- 
etarii eorundem, neque in Regno illo praepeditur aliquis sibi de 
Sale, aut quibuscunque Mercimoniis aliis ad proprium Arbi- 
trium, et de quocunque Venditore, providere. Rex tamen 
necessaria Domus suae, per rationabile Pretium juxta Consta- 
bulariorum Villarum Discretiones assidendum, invitis Posses- 
soribus, per Officiarios suos capere potest: sed Nihilominus 
Pretium illud in Manibus, vel ad Diem per majores officiarios 
Domus suae limitandum, solvere per Leges suas obnoxius est: 
quia nullius subditorum suorum Bona juxta Leges illas ipse 
deripere potest sine Satisfactione debita pro eisdem. Neque 
Rex ibidem, per se, aut Ministros suos, Tallagia, Subsidia aut 
quaevis Onera alia, imponit Legiis suis, aut Leges eorum mutat, 
vel novas condit, sine Concessione, vel Assensu totius Regni sui, 
in Parliamento suo expresso. Quare Incola omnis Regni illius, 
Fructubus quos sibi parit Terra sua, et quos gignit Pecus ejus, 
Emolumentis quoque omnibus, quae Industria propria vel aliena, 
ipse Terra Marique lucratur, ad Libitum proprium utitur, 
nullius praepeditus Injuria vel Rapina, quin- ad minus inde 
debitas consequitur Emendas ; unde Inhabitantes Terram illam 
locupletes sunt, abundantes Auro et Argento, et cunctis neces- 
sariis Vitae. Aquam ipsi non bibunt, nisi quod ob Devotionis 
et Pcenitentiae Zelum aliquando ab aliis Potubus se abstinet, 
omni Genere Carnium et Piscium ipsi in Copia vescuntur, quibus 
Patria ilia non modice est referta, Pannis de Lanis bonis ipsi 
induuntur in omnibus Operimentis suis, etiam abundant in Lec- 
tisterniis, et quolibet Suppellectili cui Lana congruit, in omnibus 
Domibus suis, necnon opulenti ipsi sunt in omnibus Huslilimentis 
Domus, necessariis Culturae, et omnibus quae ad quietam et 
felicem vitam exiguntur, secundum Status suos. Nee in Pla- 
citum ipsi ducuntur, nisi coram Judicibus ordinariis, ubi illi 
per Legis Terrae juste tractantur. Nee allocuti sive implacitati 
sunt de Mobilibus aut Possessionibus suis, vel arrettati de Cri- 
mine aliquo qualitercunque magno et enormi, nisi secundum 



24(5 

Leges Terra illius, et coram Judicibus antedictis. Et hii sunt 
Fructus, quos parit Regimen Politicum et Regale: Ex quibus 
Tibi jam apparent Experiential Effectus Legis, quam quidam 
Progenitorum Tuorum objicere conati sunt. 

Supefius quoque Tibi apparent Effectus Legis alterius, quam 
tanto Zelo, Loco Legis istius, ipsi nisi sunt inducere, ut ex Fruc- 
tibus earum Tu agnoscas eas. Et nonne Ambitio, Luxus, et 
Libido, quos praedicti Progenitores Tui Regni Bono prseferebant, 
eos ad hoc Commercium concitabant ? Considera igitur, Princeps 
uptime, et jam alia quae sequentur. 



CAP. XXXVII. 

Sanctum Thomas in Libro, quem ltegi Cypri de Regemine 
Principum scripsit, "Quod Rex datur propter Regnum, et non 
Regnum propter Regem." Quo, omnis Potestas regia referri 
debet ad Bonum Regni sui, quod effective consistit in Defensione 
ejusdem ab exterorum Incursibus, et in Tuitione Regnicolarum, 
et Bonorum suorum ab Indigenarum Injuriis et Rapinis. Quare 
Rex, qui haec peragere nequit, impotens est necessario judi- 
candus. Sed si ipse Passionibus propriis, aut Penuria ita 
oppressus est, quod Manus suas cohibere nequit a Depilatione 
Subditorum suorum, quo ipsemet eos depauperat, nee vivere 
sinit et sustentari propriis Substantiis suis: quanto tunc impo- 
tentior ille judicandus est, quam si eos defendere ipse non suffi- 
ceret erga aliorum Injurias ? Revera, Rex talis nedum impotens, 
sed et ipsa Impotentia, dicendus est, et non liber judicari potest, 
tantis Impotentiae Nexubus vinculatus. E regione, Rex liber 
et potens est, qui Incolas suos erga Exteros et Indigenas, eorum 
quoque Bona et Facultates, nedum erga Vicinorum et Concivium 
Rapinas defendere sufficit, sed erga propriam Oppressionem et 
Rapinam, licet sibi Passiones, Necessitatesque hujusmodi reluc- 
tentur. Quis enim potentior, liberiorve esse potest, quam qui non 
solum alios, sed et seipsum sufficit debellare ? Quod potest, et 
semper facit Rex Politice regens Populum suum. Quare Expe- 
riential Effectu Tibi constat, Princeps, Progenitores Tuos, qui 
sic Politicum Regimen abjicere satagerunt, non solum in hoc non 
potuisse nancisci Potentiam, quam optabant, videlicet ampliorem, 
sed et sui Bonum, similiter et Bonum Regni sui, per hoe, ipsi 
Disrrimini exposuissent, ft Periculo j»randiori. Tamen haee, 



24? 

quae jam de Experientiae Effectu practicata Potentiam Regis 
Regaliter tantum praesidentis exprobrare videntur, non ex Legis 
suae Defectu processerunt, sed ex Incuria, Negligentiaque taliter 
principantis. Quare, ipsa Dignitatem illam potentia non minu- 
unt, a Dignitate Regis Politice regulantis, quos Paris esse 
Potential in praedicto Tractatu de Natura Legis Naturae, lucu- 
lenter ostendi. Sed Potentiam Regis Regaliter tantum princi- 
pantis difficilioris esse Exercitii, ac minoris Securitatis sibi et 
Populo suo, ilia clarissime jam demonstrant, quo obtabile non 
f'oret Regi prudenti Regimen Politicum pro tantum Regali 
commutare. Unde et Sanctus Thomas supradictus optare cen- 
setur, ut omnia Mundi Requa Politice regerentur. 



CAP. XXXVIII. 

1 unc Princeps. Parce, obsecro, Cancellarie, quod te ad 
tantam a Proposito tuo Digressionem compuli Quaestionibus 
meis ; mihi namque perutilia sunt, quae hac Occasione exarasti, 
licet te parumper retardaverint a Meta Intentionis Tuae, ad 
quam, ut tu jam celerius properes, flagito, et primo, ut aliquos 
alios Casus, in quibus Legum Angliae et Civilium discrepant 
Sententiae, ut promisisti et ccepisti, mihi enarres. 



CAP. XXXIX. 

♦ 

Cancellarius. Quosdam Casus alios, in quibus dissentiunt 
Leges praedictae, ut petis, Princeps, detegere conabor. Sed 
tamen, quae Legum earum praestantior sit in Judiciis suis, non 
meo, sed Arbitratui Tuo relinquam. 

Prolem ante Matrimonium natam, ila ut post, legitimam Lex 
Givilis et succedere facit in Hazreditate Parentum ; sed Prolem, 
quam Matrimonium non parit, succedere non sinit Lex Anglorum, 
naturalem tantum earn esse, et non legitimam proclamans. 
Civilistae in Cusu hoc Legem eorum extollunt, quia Incitamentum 
earn esse dicunt, quo Matrimonii Sacramento cesset Peccatum, 
per quod alias duorum Animae interirent ; praesumendum quoque 
esse dicunt, tales fuisse contrahentium Animos in primo eorum 



V 



248 



Concubitu, quales esse demonstrat subsequens Sacramentum. 
Ecclesia etiam Foetus hujusmodi habet pro legitimis. Haec, 
ni fallor, tria Fulcimenta sunt majora, quibus ipsi approbant, 
defenduntque Legem suam. Ad quae sic respondent Legis 
Anglice periti: primo dicunt, quod Peccatum primi Concubitus 
in Casu proposito non purgatur per subsequens Malrimonium, 
licet ejus merito Delinquentium quodam modo minuatur Poena. 
Dicunt etiam, quod Peccati illius conscii lanto minus inde pcenitent, 
quo Leges Transgressoribus illis favere considerant: Quali 
etiam Consideratione procliviores ipsi redduntur ad commiitendum 
Peccatum, per quod nedum Dei, sed et Ecclesia? Praecepta neg- 
ligunt. Unde Lex ilia nedum Delinquentium participat Culpa, 
sed et Legis bona? Natura ipsa declinat; cum Lex sit Sanctio 
sancla, jubens honesta, et prohibens contraria: qualia ipsa non 
prohibet, sed potius ad inhonesta Animos labentium invitat. Nee 
vallari potest Lex ista per hoc, quod Ecclesia Foetus hujusmodi 
pro legitimis habet. Pia namque Mater ilia in quam plurimis 
dispensat, quae fieri ipsa non concedit ; dispensativa enim laxavit 
Apostolus Virginitatis Fraena, quod consulere noluit, cum omnes 
ipse voluerit, ut se Virgines permansisse. Et absit, ut Mater 
tanta a Filiis suis, in Casu isto, Pietatem suam cohiberet, dum 
saepe, ipsi etiam Legis hujus Civilis Fomento concitati, incidunt 
in Peccatum. Et per Matrimonium subsequens docetur Ecclesia, 
Contrahentes pcenitere de praeterito, et de futuro per Matrimo- 
nium se velle cohibere. Sed longe alium in hoc Casu Lex Atigliw 
Effectum operatur, dum ipsa non concitat ad Peccatum, neque 
Peccantes fovet, sed terret eos, et ne peccent, minatur Pcenas : 
Carnis etenim Illicebrae Fomento non egent, egent vero Fraenis, 
quia Irritamenta Carnis lasciva et quasi infatigabilia sunt. Et 
Homo, quum individuo perpetuari nequit, perpetuari naturaliter 
appetit in Specie sua, quia omne quod vivit assimilari cupit 
Causae primae, quae perpetua est et aeterna. Unde sit, quod 
plus delectatur Homo in Sensu T actus, quo servatur species ejus, 
quam in Sensu Gustus, quo conservatur individuum. Quare 
Noe, ulciscens in Filium qui ejus Pudenda revelavit, nepoti 
suo Filio Delinquentis maledixit, ut inde plus cruciaretur Reus, 
quam proprio possit Incommodo. Quare Lex qua: vindicat in 
Progeniem Delinquentis paenalius prohibet Peccatum, quam quce 
solum Delinquentem jlagellat. Ex quibus considerare licet, 
quanto Zelo Lex Angliae illicitos prosequitur Concubitus, dum 
ex eis editam Prolem ipsa nedum judicat non esse legitimam, 






249 

sed et succedere prohibet in Patrimonio Parentum. Num quid 
tunc, Lex ista casta non est ? et non fortius, firmiusque repellit 
Peccatum, quam facit Lex praedicta Civilis, quae cito, et quasi 
inultum Luxuriae Crimen remittit? 



CAP. XL. 

Pr.,eterea, Leges Civiles dicunt, " Filium naturalem tuum 
esse Filium Populi." De quo Metricus quidam sic ait, 

Cut Pater est Populu*, Pater est sibi nullus et omnis: 
Cui Pater est Populus, non habet ipse Patrem, 

Et dura Proles talis Patrem non habuit Tempore Nativitatis 
suae, quomodo ex post facto ipse Patrem nancisci poterit, Natura 
non novit. Quo, si ex Fornicatoribus duobus Mulier una Filios 
peperit duos, quam postea unus ex Concubinariis illis ducat 
in Uxorem, quis ex Filiis hiis duobus per Matrimonium illud 
legitimatur ? Opinio suadere potest, sed Ratio reperire nequit, 
dum ambo Filii illi Populi Foetus judicati semel Parentes ig- 
norabant. Inconsonum propterea videretur, quod in Matrimonio 
illo extunc ab eadem Muliere natus, cujus Generatio ignorari 
non poterit, expers esset Haereditatis, et Filius nescius Geni- 
toris sui succederet Patri et Matri ejus, maxime infra Regnum 
Anglian, ubi Filius senior solus succedit in Hcereditate paterna ; 
et non minus incongruum esse sentiret Arbiter aequus, si Filius 
ex Stupro aequaliter participaret cum Filio ex legitimo Thoro 
Haereditatem, quae Jure Civili inter masculos dividenda est. 
Nam Sanctus Augustinus, XVI. Libro de Civitate Dei, sic scribit. 
Abraham omnem Censum suum dedit Isaac Filio suo, Filiis autem 
Concubinarum dedit Dationes :" Ex quo videtur innui, quod 
Spuriis non debetur Haereditas, sed Vietus necessitas. Haec 
ille. Sub Nomine vero Spurii denotat Augustinus, omnem 
Foetum illegitimum, qualiter et saepius facit Scriptura sacra, 
quae Neminem vocat Bastardum. Ecce Differentiam non mini- 
mam sentit Augustinus, sentit et Abraham inter Successionem 
Spurii et Filii ex legitimo Concubitu. Caeterum, omnes Filios 
illegitimos reprehendit Scriptura sacra sub Metaphora hac, 
dicens, " Spuria Vitulamina non dabunt Radices alias, nee stabile 



250 

Fundamentum collocabunt," Sapientiae IV. Reprehendit et Ecv 
clesia, qua? eos a sacris repellit Ordinibus, et si cum tali dis- 
pensaverit, non eum tamen permittit Dignitate praeesse in 
Ecclesia Dei. Congruit idcirco Legi Hominum, in Successionis 
Beneficio minuere, quos Ecclesia indignos judicat sacro Ordine, 
et quos ipsa repellit ab omni Praelatia : ipsos etiam, quos Scrip- 
tura sacra in Natalibus minoratos judicat a legitime procreatis. 
Gedeon autem, Virorum fortissimus, LXX. Filios in Matrimonio 
legitur procreasse, et non nisi unum solum habuisse ex Con- 
cubina; Filius tamen ipse Concubinae omnes Filios illos legi- 
timos nequiter peremit, excepto uno solo, Judicum IX. Quo, 
in Notho uno plus Malitiae fuisse deprehenditur, quam in Filiis 
legitimis LX1X. Tritum etenim Proverbium est, Si bonus 
est Bastardus, fioc ei venit a Casii, videlicet Gratia speciali, si 
autem malus ipsefuerit, hoc sibi accidit a Natura. Corruptionem 
namque et maculam quandam censetur illegitimus Partus con- 
trahere a Peccato Genitorum suorum sine Culpa ejus, ut maxi- 
mam nos contraximus omnes a Crimine primorum Parentum, 
licet non tantam : aliam tamen Nothi quam legitimi contrahunt 
Maculam ex Genitura sua, eorum namque Generationem mutua 
utriusque Parentis Libido culpabilis operatur, qualiter in legi- 
timis, castisque Amplexibus Conjugatorum ipsa non solet de- 
bacchari, mutuum sane et commune est Peccatum taliter For- 
nicantium, Quo, primo similatum Peccato magis sevit in Fcetum, 
quam Peccatum aliter, solitarieque Peccantium, ut exinde Natus 
potius Peccati Filius dici mereatur, quam Filius Peccatorum. 
Quare Sapientiae Liber Generationes has duas distinguens de 
Generatione legitima sic affatur, " quam pulckra est casta 
Generatio cum claritate ! Immortalis est enim Memoria illius, 
quoniam apud Deum nota est et apud Homines." Altera vero 
non est nota apud Homines, quo Filii ex ea nati, Filii Populi 
nominantur. De Generatione utique ilia altera, Liber ille dicit, 
" Ex iniquis omnes Filii qui nascuntur, Testes sunt Nequilia' 
adversus Parentes suos, in Inter rogatione sua." (Sapientiae eodem 
IV. cap.) Interrogati etenim de Parentibus suis, eorum ipsi 
revelant Peccatum, ut Filius Noe nequam revelavit Pudenda 
Patris sui. Creditur idcirco, caecum ilium Natum, de quo Pha- 
risaei, Johannis IX. dixerunt " Tu in Peccatis natus es totus," 
fuisse Bastardum, qui nascitur totaliter ex Peccato ; et dum sub- 
ditur, " Et tu doces nos ?" videtur eos intellexisse, Bastardum 
non ut legitimum in Naturalibus esse dispositum ad Scientiam 



251 

et Doctrinam. Non igitur bene dividit Lex ilia, qua? Bastardos 
a Nativitate, et legitimos parificat in Haereditate paterna, cum 
eos dispares judicet Ecclesia in Haereditate Dei ; similiter et 
distinguat sacra Scriptura in Forma praenotata, dividatque natura 
in Donis suis, signans naturales tantum naevo quasi naturali 
quodam, licet latente in Animis suis. Quam igitur Legum 
istarum, Anglicarum, viz. et i'ivilium, in Casu hoc, Tu Princeps 
illustrissime, amplecteris et judicas praeferendam ? 



CAP. XLI. 

Princeps. Revera earn, qua: fortius a Regno Peccatum eli- 
minat, et firmius in eo Virtutem conservat. Arbitror etiam illos 
in Legis humanae Beneficiis minorandos, quos Lex divina in- 
digniores considerat, et quos postponit Ecclesia in Beneficiis 
suis, Natura quoque procliviores judicat ad peccandum. Can- 
cellarius. Recte aestimo Te sentire, quare et Casus alios memo- 
rabor, in quibus discrepant hae leges duae. 



CAP. XLII. 

Leges Civiles sanciunt, quod " Partus semper sequitur 
Ventrem." Ut, si Mulier servilis Conditionis nubat Viro Con- 
ditionis libera?, Proles eorum Servus erit : Et e converso, Ser- 
vus maritatus Liberae, non nisi Liberos gignit. Sed Lex Angliae 
nunquam Matris, sed semper Patris Conditionem imitari Partum 
judicat. Ut ex Libera, etiam ex Nativa, non nisi Liberum 
Liber generet ; et non nisi Servum in Matrimonio procreare 
potest Servus. Quae, putas, Legum harum melior est in Sen- 
tentiis suis ? Crudelis est Lex, quae Liberi Prolem sine Culpa 
subdit Servituti. Nee minus crudelis censetur, quae Liberae 
Sobolem sine Merito redigit in Servitutem. Legistoe vero dicunt, 
Leges Civiles praevalere in hiis Judiciis suis. Nam dicunt, quod 
" non potest Arbor mala Fructus bonos facere, neque Arbor bona 
Fructus malos facere." Ac omnis Legis Sententia est, quod 
Plantatio quaelibet cedit Solo quo inseritur ; certior quoque 
multo est Partus, qua? eum fuderunt viscera, quam quis eum 



252 

Pater procreavit. Ad haec Legis Anglian Consulii dicunt, quod 
" Partus ex legitimo Thoro non certius iwscit Matron quam Geni- 
torem suum." Nam ambae Leges, quae jam contendunt, uni- 
formiter dicunt, quod " ipse est Pater, quern Nuptice demonstrant." 
Numquid tunc magis est conveniens, ut Filii Conditio ad Patris 
potius quam ad Matris Conditionem referatur, cum de Con- 
jugatis dixerat Adam, " Erunt ipsi duo in Came una;" quod 
Dominus exponens in Evangelio ait, "Jam non sunt duo, sed 
una Caro." Et cum Masculinum concipiat Fcemininum, ad 
masculinum quod dignius est referri debet tota Caro sic facta 
una. Quare Adam et Evam vocavit Dominus, non Evam, sed 
quia Caro una ipsi erant, ambos eos vocavit ipse nomine Viri, 
videlicet, Adam, ut patet Genesis quinto Capitulo. Ipsae quoque 
Civiles Leges dicunt, quod Mulieres semper coruscant Radiis 
Maritorum suorum. Unde C. Qui Prqfessione se excusant, Libro 
nono, L. fi. Textus sic loquitur " Mulieres Honore Maritorum 
erigimus," et Genere nobilitamus, et Forum ex eorum Persona 
statuimus, et Domicilium mutamus. Sin autem " Minoris 0r~ 
dinis Virum postea sortitx, priore Digtiitate privates, posterioris 
Mariti consequantur Conditionem et Domicilium." Et cum 
Nomen Patris, et non Matris, gerat Proles omnis, et maxime 
masculina, unde tunc provenire poterit, quod Filius, Ratione 
Matris, amitteret Honorem, Conditionemve Patris sui mutaret, 
cujus tamen Nomen ipse retinebit, praesertim dum Honore 
Patris ejusdem ac Conditione resplendeat Mater ejus, et dum 
Viri Honor vel Conditio nunquam per Uxoris Vitium deni- 
gratur. Crudelis nempe censeretur Lex, quae, sine Causa, 
Filium Liberi Servituti committit; et Terram, pro qua Liber 
ille, innocens a Crimine, sudavit innocentis Filii sui Titulo, 
non sudanti tradet extraneo possidendam, ac Patris Nomen 
etiam Filii Servitutis Nota commaculat. Crudelis etiam neces- 
sario judicabitur Lex, quae Servitutem augmentat, et minuit 
Libertatem. Nam pro ca Natura semper implorat humana. Quia, 
ab Homine, et pro Vitio, introducta est Servitus. Sed Libertas 
a Deo Hominis est indita Naturae. Quare ipsa ab Homine 
sublata semper redire gliscit, ut facit omne quod Libertate natu- 
rali privatur. Quo ipse et crudelis judicandus est, qui Liber- 
tati non favet. Haec considerantia Anglia; Jura in Omni Casu 
Libertati dant Favorem. Et licet Jura ilia judicent cum Servum, 
qucm Scrvus in Conjugio ex Libera procreavit, non per hoc 
Jura ilia rigida crudeliave sentiri poterunt. Nam Mulier, quae 



253 

Conjugio Servo se subjecit, facta ei Caro una, quo ipsa, ut 
dicunt Leges suprascriptae, ejus consequitur Conditioners, et 
proprio Arbitrio se fecit Ancillam, sed potius Servam, nullatenus 
a Lege coacta, qualiter et faciunt qui se Servos reddunt in 
Curiis Regum, vel in Servitutera se vendunt, nullatenus ad 
hoc compulsi. Quo modo tunc Liberum sancire possunt Leges 
Filium ilium; quem mater talis taliter est enixa? Nunquam 
enim sic subjectus est Vir Uxori, licet maxima Domina ipse 
fuerit, ut Subjecta est Libera haec Servo, quem ipsa facit Domi- 
num ejus, dicente Domino Uxori omni, " Eris sub Potestate 
Viri, et ipse dominabitur tibi." Et quid est, quod dicunt Legistae 
ilk' de Fructu Arboris bonae vel malae, nonne conditionis Liberae 
vel Servilis est Uxor omnis, qualis est Maritus ejus? Et in 
cujus Solo planiavit Maritus, dum Uxor ejus est sibi Caro una? 
nonne in proprio} Quid si Surculum dulcis Naturae inseverit 
ipse Stipiti Arboris acerbae, dummodo Arbor ilia ejus est, Nonne 
FructHs (licet ex Stipite redolent) semper sint Fructus ejus; 
sic ex Muliere genita Proles Mariti est Progenies, fuerit mater 
Libera vel Ancilla. Sanciunt tamen Leges Angliae, quod Domi- 
nus Nativa? a Libero in Matrimonium sumptas ipso inconsulto, 
cum earn repudiare nequeat, dicente Evangelio, " Quos Deus 
conjunxit Homo non separet," recuperabit versus Liberum ilium 
omne Damnum quod ipse sustinuit Ratione deperditi Servitii, 
et amissae Ancillae. Haec jam, ut aestimo, est Summa et Forma 
Legis Angliae, in Casu jam enarrato. Quid igitur jam Tibi 
videtur, Princeps, in Casu isto? et quae Legum praedictarum 
praestantior aut eligibilior a Te judicatur? 



CAP. XLIII. 

Princeps. Anglorum Legem in hoc Casu Romanorum Legi 
praestare, dubitare nos Ratio non permittit. Et optatior mihi 
semper est Lex, quae Favorem potius quam Rigorem Partibus 
administrat. Recolo namque illius Juris Regulam quae sic dicit, 
" Odia perstringi, et Favores convenit ampliari." Cancellarius, 
Et bene quidem. Alium adhuc Casum Tibi referam, Princeps, 
in quo concertant Leges istae, et non multum postea tunc de- 
sistam; ne onerosum Tibi sit tantis sollicitari Schismatibus, 
etiam ne in Fastidium Tibi veniat Disceptatio mea diutius 
protelata. 



254 



CAP. XLIV. 

Leges Civiles imo Puberum Tutelas proximis de eorum San- 
guine committunt, agnati fuerint seu cognati, unicuique videlicet 
secundum Gradum et Ordinem, quo in Haereditate Pupilli suc- 
cessurus est. Et Ratio Legis hujus est, quia nulius tenerius 
favorabiliusve Infantem alere sataget quam proximus de San- 
guine ejus. Tamen longe aliter de Impuberum Custodia statuunt 
Leges Angliae. Nam ibidem, "Si Haereditas, quae tenetur in 
Socagio, descendat Impuberi ab aliquo Agnatornm suorum, non 
erit Impubes Me sub Cilstodia alicujus Agnatornm ejus, sed per 
ipsos Cognatos, videlicet Consanguineos ex Parte Matris ipse 
regetur." Et si ex Parte Cognatorum Haereditas sibi descen- 
derit, Pupillus ille cum Haereditate sua per proximum Agnatum, 
et non cognatum ejus custodietur, quousque ipse fuerit adultus. 
Nam Leges ille dicUnt, quod " committer e Tutelam Infantis Mi 
qui est ei proxime successurus, est quasi Agnum commit t ere Lupo 
ad devorandum." Sed si Haereditas ilia, non in Socagio, sed 
teneatur per Servitium militare, tunc per Leges terras illius, 
Infans ipse et Haereditas ejus non per Agnatos neque Cognatos, 
sed per Dominum Feodi illius custodientur, quousque ipse fuerit 
artatis viginti et unius Annorum. Quis, putas, Infantem talem, 
in Actibus bellicis, quos facere, Ratione Tenurae suae, ipse astrm- 
gitur Domino Feodi sui, melius instruere poterit aut velit, 
quam Dominus ille, cui ab eo Servitium tale debetur; Et qui 
majoris Potentiae et Honoris aestimatur, quam sunt alii Amici 
propinqui Tenentis sui. Ipse namque, ut sibi ab eodem Tenente 
melius serviatur, diligentem Curam adhibebit, et melius in his 
eum erudire expertus esse censetur, quam reliqui Amici Juvenis, 
rudes forsan, et Armorum inexperti, maxime si non magnum 
fuerit Patrimonium ejus. Et quod utilius est Infanti, qui vitam 
et omni sua Periculis bellicis exponet in Servitio Domini sui 
Ratione Tenurae suae, quam in Militia Actubusque bellicis im- 
bui, dum minor est, cum Actus hujusmodi ipse in aetate matura 
declinare non poterit? Et revera non minime erit Regno ac- 
commodam, ut Incoloe ejus in Armis sint experti. Nam, ut 
dicit Philosophus, " Audactor quilibet Jack, quod se scire ipse 
non diffidit." Nunquid tunc Legem hanc, Tu approbas, Fi/i 
Regis, et collaudas super Legem alteram jam descriptam ? 



255 



CAP. XLV. 

Prisceps. Immo, Cancellarie, Legem banc, plusquam alte- 
ram, ego laudo. Nam in ejus Parte prima, quam Tu notasti, 
caute magis, quam Civilis, ipsa providet Securitati Pupilli. Sed 
tamen in ejus Parte secunda, multo magis ego delector. Nam 
ab ea est, quod in Anglia, Nobilium Progenies de facili dege- 
nerari non potest, sed Probitate potius, Strenuitate, et Morum 
Honestate Antecessores suos ipsa transcendet, dum, in altiori, 
nobiliorique Curia, quam in Domo Parentum, ilia sit imbuta, 
licet in Domo consimili forsan Parentes ejus educati erant: 
Quia consimilis adhuc non erat Domus Parentum illorum Domui 
Dominorum, quibus ipsi Parentes et ipsi Infantes servierunt. 
Princeps quoque Regni sub hac Lege regulati, similiter et 
Domini alii a Rege immediate tenentes non possunt de levi 
in Lasciviam, Ruditatemve labi, cum in Pueritia, dum Orphani 
fuerint ipsi, in Domo Regia nutriuntur. Quare non Infime 
Domus Regiae Opulentiam, Magnitudinemque collaudo, dum in 
ea Gymnasium supremum sit Nobilitatis Regni ; Schola quoque 
Strenuitatis, Probitatis, et Morum quibus Regnum honoratur, 
et floret, ac contra irruentes securatur, etiam Formido ipsa erit 
Inimicis et Amicis Regni. Hoc revera Bonum accidisse non 
potuisset Regno illi, si Nobilium Filii, Orphani, et PupiUi, per 
pauperes Amicos Parentum suorum nutrirentur. Nee Regni 
Bono oflficere potest, licet Burgensium Filii et aliorum libere 
tenentium, qui in Socagio tenent Tenementa sua, quo ipsi ad 
Militiam non astringuntur, in Domo consimilium Amicorum 
suorum educantur, ut perspicue consideranti lucide apparere 
potest. 



CAP. X'LVI. 

Tunc Cancellarius. Sunt et alii Casus nonnulli, in quibus 
differunt Leges antedictae. Ut quia Leges Civiles judicant 
Furtum manifestum, per Redditionem Quadrupli ; et Furtum non 
manifestum, per Dupli Recompensationem, expiari. Sed Leges 
Angliae neutrum Facinorum illorum mitius, quam Committentis 
Morte puniri permittunt ; dum modo ablati Valor duodecim Dena- 



256 

riorum Valorem excedat. Item Libertinum ingratum Leges Civiles 
in pristinam redigunt Servitutem: Sed Leges Angliae semel 
manumissum semper Liberum judicant, gratum et ingratum. Alii 
quoque sunt Casus hujuscemodi non pauci, quos jam Studio 
Brevitatis praetereo. Et neque in hiis duobus Casibus, prae- 
dictarum Legum Praestantias ego jam describo, cum non magnae 
sint Indaginis eorum Qualitates. Nee diffido Ingenii Tui Soler- 
tiam eas sufficienter posse rimari. 

CAP. XLVII. 

Pmnceps. Nee expedit, Cancellarie, in hiis multum sudare. 
Quia beet in Anglia, Fures clandestini et manifesti passim Morte 
plectantur, non cessant ipsi ibidem omnino praedari, ac si Poenam 
tantam illi minime formidarent. Quanto tunc minus se absti- 
nerent a Crimine, si Pcenam prceviderent mitiorem? Et absit, 
a Servitute semel evasum semper deinde sub minis tremere 
Servitutis, maxime Ingratitudinis Colore, cum Ingratitudinum 
Species vix poterint, prae Multitudine, numerari, et humana 
Natura, in Libertatis Causa, Favorem semper, magis quam in 
Causis aliis, deprecetur. 

Sed jam, Cancellarie, obnixe te imploro, ut amodo amissa 
plurium Casuum hujusmodi Examinatione, mihi edicas, quare 
Leges Angliae, tam bona?, frugi, et optabiles, in Universitatibus 
non docentur, ut Civiles similiter et Canonum Leges ; et quare 
in eisdem non datur Baccalareatus et Doctoratus Gradus, ut 
in aliis Facultatibus et Scientiis est dari consuetum. 



CAP. XLVIII. 

Cancellarius. In Universitatibus Angliae non docentur 
Scientiae nisi in Latina Lingua; Et Leges Terrae illius in 
triplici Lingua addiscuntur, viz. Aaglica, Gallica, et Latina. 
Anglica, quia inter Anglos Lex ilia maxime inolevit. Gallica, 
quia postquam Galli, Duce Wilhelmo Anglice Conquestore, Ter- 
rain illam optinuerunt, non permiserunt ipsi eorum Advocatos 
placitare Causas suas, nisi in Lingua quam ipsi noverunt, qua- 



257 

liter et faciunt omnes Advocati in Francia, etiam in Curia 
Parliamenti ibidem. Consimiliter Gallici post eorum Adventum 
in Angliam,, Ratiocinia de eorum Proventibus non receperunt 
nisi in proprio Idiomate, ne ipsi inde deciperentur. Venari etiam, 
et Jocos alios exercere, ut Talorum et Pilarum Ludos, non nisi 
in propria Lingua delectabantur. Quo, et Anglici, ex frequenti 
eorum in talibus Comitiva, Habitum talem contraxerunt, quod 
hucusque ipsi in Ludis hujusmodi, et Compotis, Linguam locuuntur 
Gallicanam, et placitare in eadem Lingua soliti fuerunt, quousque 
Mos ille, Vigore cujusdam Statuti, quam plurimum restrictus 
est; tamen in toto, hucusque aboleri non potuit; turn, propter 
Terminos quosdam, quos plus proprie Placitantes, in Gallico 
quam in Anglico, exprimunt; turn quia Declarationes, super 
Brevia Originalia, tarn convenienter ad Naturam Brevium illo- 
rum pronunciari nequeunt, ut in Gallica, sub quali Sermone 
Declarationum hujusmodi Formulae addiscuntur. Reportantur 
etiam ea, quae in Curiis Regiis placitantur, disputantur, et judi- 
cantur, ac in Libros ad futurorum Eruditionem rediguntur, 
in Sermone semper Gallico. Quam plurima etiam Statuta Regiii 
illius in Gallico conscribuntur. Unde accidit, quod Lingua, 
jam in Francia Vulgaris, non concordat aut consimilis est Gal- 
lico inter Legis peritos Angliae usitato, sed vulgariter quadam 
Ruditate corrupta. Quod fieri non accidit in Sermone Gallico 
infra Angliam usitato, cum sit Sermo ille ibidem saepius scriptus 
quam locutus. Sub tertia vero Linguarum praedictarum, viz. 
sub Latina, omnia Brevia Originalia et judicilia, similiter et 
omnia Recorda Placitorum in Curiis Regum, etiam et qusedam 
Statuta, scribuntur. Quare, dum Leges Angliae in his tribus 
addiscuntur Linguis, ipsae in Universitatibus, ubi solum ex- 
ercetur Lingua Latina, convenienter erudiri non poterunt, aut 
studeri. Leges tamen illae, in quodam Studio publico, pro 
illarum Apprehensione omni Universitate convenientiore et pro- 
niore, docentur et addiscuntur. Studium namque istud situm 
est prope Curiam Regis, ubi Leges illae placitantur, disputantur, 
et Judicia per easdem redduntur per Judices, viros graves, 
Senes, in Legibus illis peritos et graduates; quo in Curiis 
illis, ad quas omni Die placitabili confluunt Studentes in Legi- 
bus illis, quasi in Scholis publicis, Leges illse leguntur et docen- 
tur. Situatur etiam Studium illud inter Locum Curiarum 
illarum et Civitatem London, quae de omnibus necessariis opu- 
lentissima est omnium Civitatum et Oppidorum Regni illius* 

R 



258 

Nee in Civitate ilia, ubi Confluentium Turba Studentium 
Quietem perturbare possit, situm est Studium istud ; sed seorsim 
parumper, in Civitatis illius Suburbio, et propius Curiis prae- 
dictis, ut ad eas, sine Fatigationis Incommodo, Studentes indies 
ad Libitum accedere valeant. 



CAP. XLIX. 

Sed ut Tibi constet, Princeps, hujus Studii Forma et 
Imago, illam ut valeo, jam describam. Sunt namque in eo 
decern Hospitia minora, et quandoque vero plura, quae nomi- 
nantur Hospititia Cancellarioe. Ad quorum quodlibet pertinent 
centum Studentes ad minus, et ad aliqua eorum major in multo 
Numerus, licet non omnes semper in eis simul conveniant. 
Studentes etenim isti, pro eorum parte majori, Juvenes sunt, 
Originalia, et quasi Legis Elementa addiscentes, qui in illis 
proficientes, ut ipsi maturescunt, ad majora Hospititia Studii 
illius, quae Hospitia Curios appellantur, assumuntur. Quorum 
majorum quatuor sunt in Numero, et ad minimum eorum per- 
tinent in Forma praenotata ducenti Studentes aut prope. In 
his enim majoribus Hospitiis, nequaquam potest Studens aliquis 
sustentari minoribus Expensis in Anno, quam octoginta Scuto- 
rum, et si Servientem sibi ipse ibidem habuerit, ut eorum habet 
Pluralitas, tanto tunc majores ipse sustinebit Expensas. Oc- 
casione vero Sumptuum hujusmodi, ipsi Nobilium Filii tantum 
in Hospitiis illis Leges addiscunt. Cum Pauperes et Vulgares, 
pro Filiorum suorum Exhibitione, tantos Sumptus nequeant 
sufferre. Et Mercatores raro cupiant tantis Oneribus annulis 
attenuare Mercandisas suas. Quo fit, ut vix doctus in Legibus 
illis reperiatur in Regno, qui non sit Nobilis, et de Nobilium 
Genere egressus. Unde magis aliis consimilis Status Hominibus, 
ipsi Nobilitatem curant, et Conservationem Honoris et Famae 
suae. In his revera Hospitiis majoribus, etiam et minoribus, 
ultra Studium Legum, est quasi Gymnasium omnium Morum 
qui Nobiles decent. Ibi cantare ipsi addiscunt, similiter et 
se exercent in Omni Genere Harmoniae. Ibi etiam tripudiare, 
ac Jocos singulos NobiUbus conveniuntes, qualiter in Domo Regia 
exercere solent, enutriti. In ferialibus Diebus, eorum pars 
major Legalis Disciplined Studio, et in Festivalibus sacra Scrip- 



259 

tura et Cronicorum Lectioni, post Divina obsequia, se confert. 
Ibi quippe Disciplina Virtutum est, et Vitiorum omnium 
Exilium. Ita ut propter Virtutis Acquisitionem, Vitii etiam 
Fugam, Milites, Barones, alii quoque Magnates, et Nobiles 
Regni, in Hospitiis illis ponunt Filios suos, quamvis non glis- 
cunt eos Legum imbui Disciplina, nee ejus Exercitio vivere, 
sed solum ex Patrociniis suis. Ibi vix unquam Seditio, Jurgium, 
aut Murmur resonat, et tamen Delinquentes non alia Poena 
quam solum a Communione Societatis suae Amotione plectuntur ; 
quia Pcenam hanc ipsi plus formidant, quam Criminosi alibi 
Carcerem timent, aut Vincula: Nam semel ab una Societatum 
illarum expulsus nunquam ab aliqua caeterarum Societatum 
earunden recipitur in Socium; quo ibi Pax est continua, et 
quasi Amicitia conjunctorum est eorum omnium Conversatio. 
Formam vero, qua Leges ilia? in his discuntur Hospitiis, hie 
exprimere non expedit; cum Tibi, Princeps, earn experiri non 
liceat. Scito tamen, quod delectabilis ipsa est, et omni modo 
expediens Legis illius Disciplina?, omni quoque Affectione digna. 
Unum tamen Te scire desidero, quod neque Aurelianis, ubi 
tarn Canones addiscuntur, quam Civiles Leges, et quo a quam- 
pluribus Regionibus confluunt Scholares, neque Andaginis, aut 
in Cadomo, aliave Universitate Francia?, pra?terquam solum 
Parisiis, reperiuntur tot Studentes Infantiam evasi, sicut in 
hoc Studio; licet ibi Addiscentes omnes solum ab Anglia sint 
oriundi. 



GAP. L. 

Sed cum Tu, Princeps, scire desideres, cur in Legibus 
Anglia? non datur Baccalareatus et Doctoratus Gradus, sicut 
in utroque Jure in Universitatibus est dare consuetum ; scire 
Te volo, quod licet Gradus hujusmodi in Legibus Anglia? 
minime conferantur, datur tamen in illis, hedum Gradus, sed 
et Status quidam, Gradu Doctoratus non minus Celebris aut so- 
lemnis, qui Gradus Servientis ad Legem appellatur. Et con- 
fertur sub hac, qua? subsequitur, Forma. Capitalis Justiciarius 
de Communi Banco, de Consilio et Assensu omnium Justi- 
ciariorum eligere solet, quoties sibi videtur opportunum, VII. 
vel VIII. de maturioribus Personis, qui in pra?dicto generali 

r2 



260 

Studio magis in Legibus profecerunt, et qui eisdem Justiciariis 
optima? Dispositions esse videntur, et nomina eorum ille 
deliberare solet Cancellario Anglice in Scriptis, qui-illico man- 
dabit per Brevia Regis cuilibet Electorum illorum, quod sit 
coram Rege ad Diem per ipsum assignatum ; ad suscipiendum 
Statum et Gradum Servientis ad Legem sub ingenti Poena, in 
quolibet BVevium praedictorum limitata; ad quem Diem qui- 
libet eorum comparens jurabitur (super sancta Dei Evan- 
gelia) fore paratum ad Diem et Locum tunc sibi statuendos, 
ad recipiendum Statum et Gradum praedictum, et quod ipse 
in Die illo dabit Aurum, secundum Consuetudinem Regni in 
hoc Casu usitatam. Tamen, qualiter ad Diem illam, quilibet 
electorum praedictorum se habebit, nee non Formam et modum, 
qualiter Status et Gradus hujusmodi conferentur et recipientur, 
hie inserere omitto, cum Scripturam majorem ilia exigant, quam 
congruit Operi tarn succincto. Tibi tamen, Ore tenus, ea alias 
explicavi. Scire tamen Te cupio, quod adveniente Die sic 
Statute, electi illi, inter alias Solemnitates, Festum celebrant, 
et Convivium ad instar Coronationis Regis, quod et continuabitur 
per Dies septem ; nee quisquam Electorum illorum Sumptus, 
sibi contingentes circa Solemnitatem Creationis suae, minoribus 
Expensis perficiet, quam mille et sexcentorum Scutorum ; quo, 
Expensae, quas octo sic electi tunc refundent, excedunt Summam 
3200 Marcarum expensarum ; Pars quaedam, inter caetera, haec 
erit : Quilibet eorum dabit Annuhs de Auro, ad Valenciam in 
toto 40 Librarum (ad minus) Monetae Anglicanae. Et bene 
recolit Cancellarius ipse, quod cum ille Statum et Gradum 
hujusmodi receperat, ipse solvit pro Annulis, quos tunc dis- 
tribuit, 50 Libras, quae sunt 300 Scuta. Solet namque unus- 
quisque Servientium hujusmodi, Tempore Creationis suae, dare 
cuilibet Principi, Duci, et Archiepiscopo, in Solemnitate ilia prce- 
senti, ac Cancellario, et Thesaurario Angliae, Annulum ad Valo- 
rem 26*. 8d. Et cuilibet Comiti et Episcopo consimiliter prae- 
sentibus, nee non Custodi privati Sigilli, utrique Capitali 
Justiciario, et Capitali Baroni de Scaccario Regis Annulum ad 
Valorem 20*. Et omni Domino Baroni Parliament^ et omni 
Abbati et notabili Prcelato, ac magno Militi tunc praesenti, 
Custodi etiam Rotuiorum Cancellarioe Regis, et cuilibet Jus- 
ticiariorum, Annulum ad Valenciam 1 Marcae. Similiter et 
omni Baroni de Scaccario Regis, Camerariis, etiam omnibus 
Officiariis et notabilibus viris in Citrus Regis roinistrantibus, 



261 

Annulos minoris Pretii, convenientes tamen Statibus eorum 
quibus donantur. Ita quod, non erit cleric us, maxime in Curia 
Communis Band, licet infimus, quin Annulum ipse recipiet 
convenientem Gradui suo. Et ultra hos ipsi dant Annulos aliis 
Amicis suis. Simititer et Libratam magnam Panni unius Sectae, 
quam ipsi tunc distribuent in Magna Abundantia, nedum Fami- 
liaribus suis, sed et Amicis aliis et notis, qui eis attendent et 
ministrabunt Tempore Solemnitatis praedictae. Quare, licet in 
Universitatibus in Gradum Doctoratus erecti Expensas non 
modicas faciant Tempore Creationis suae, ac Birreta, alia quoque 
Donaria quam Bona erogent ; non tamen Aurum ipsi conferunt, 
aut alia Donaria, sumptusve faciunt, his Expensis similia. Neque 
in Regno aliquo Orbis Terrarum datur Gradus specialis in 
Legibus Regni illius, praeterquam solum in Regno Anglian. Nee 
est Advocatus in Universo Mundo, qui Ratione Officii sui tan- 
tum lucratur, ut Serviens hujusmodi. Nullus etiam, licet in 
Legibus Regni illius scientissimus fuerit, assumetur ad Officium 
et Dignitatem Justiciarii in Curiis Placitorum coram ipso Rege, 
et communis Band, quae sunt supremae Curiae ejusdem Regni 
ordinariae, nisi ipse primitus Statu et Gradu Servientis ad Legem 
fuerit insignitus. Nee quisquam, et praeterquam Serviens talis, 
in Curia communis Band, ubi omnia realia Placita placitantur, 
placitabit. Quare ad Statum et Gradum talem, nullus hucusque 
assumptus est, qui non in praedicto generali Legis Studio 
sexdecem Annos ad minus antea complevit, et in Signum quod 
omnes Justiciarii illi taliter extant Graduati, quilibet eorum 
semper utitur, dum in Curia Regis sedet, Birreto albo de serico, 
quod primum et praecipuum est de Insignibus Habitus, quo 
Servientes ad Legem, in eorum Creatione, decorantur. Nee 
Birretum illud Justiciarius, sicut nee Serviens ad Legem unquam 
deponet, quo Caput suum in toto discooperiet, etiam in Pr ab- 
sentia Regis, licet cum Celsitudine sua ipse loquatur. Quare, 
Princeps prceclarissime, Tu a modo haesitare non poteris, quin 
Leges istae, quae tam singulariter supra Civiles Leges, Leges 
etiam omnium alioram Regnorum honorantur, et tam solemni 
Statu eruditorum et ministrantium in eis venerantur, prwtiosa'. 
sint, Nobiles, et sublimes, ac magnae Proestantice, maximaeque 
Sciential et Virlutis. 



262 



CAP. LI. 

Oed ut Justiciariorum (sicut et Servenliem ad Legem) Status 

Tibi innotescat, eorum Formam, Officiumque (ut potero) jam 

describam. Solent namque in conjmuni Banco quinque Justiciarii 

esse, vel sex ad majus. Et in Banco Regis, quatuor vel quinque, 

ac quoties eorum aliquis, per Mortem vel aliter cessaverit, Rex 

de Advisamento Concilii sui eligere solet unum de Servientibus 

ad Legem, et eum per Literas suas Palentes constituere in Jus- 

ticiarium, loco Judicis sic cessantis ; et tunc Cancellarius Angliae 

adibit Curiam, ubi Jusiiciarius sic deest, deferens secum Literas 

illas, ac sedens in Medio Justiciariorum, introduci facit Servientem 

sic electum ; cui in plena Curia ipse notificabit Voluntatem Regis, 

de officio Judiciario sic vacante, et legi faciet in publico Literas 

praedictas : Quo facto, Custos Rotulorum Cancellarice Regis leget 

coram eodem Electo Jusjurandum quod ipse facturus est, quod 

et cum supra Sancta Dei Evangelia ipse juraverit, Cancellarius 

sibi tradet Literas Regis praedictas et Capitalis Justiciarius Curiae 

illius assignabit sibi Locum in eadem, ubi deinceps ille sedebit, 

et mox eum sedere faciet in eodem. Sciendum tamen Tibi est, 

Princeps, quod Justiciarius iste inter caetera tunc jurabit, es 

Justitiam ministraturum indifferenter omnibus Hominibus coram 

eo placitantibus, Inimicis et Amicis, nee sic facere differet, 

etiamsi Rex per Literas suas, aut Ore tenus, contrarium jusserit. 

Jurabit etiam, quod ex tunc non recipiet ipse ab aliquo, prae- 

terquam a Rege Fedum, aut Pensionem aliquam, seu Liberatam, 

neque Donum capiet ab habente Placitum coram eo, praeterquam 

Esculenta et Poculenta, quae non magni erunt Pretii. Sciendum 

,etiam Tibi est, quod Jusiiciarius sic creatus, Convivium, Solem- 

nitatemve, aut Sumptus aliquos non faciet Tempore Susceptionis 

Officii et Dignitatis suae; cum non sint ilia Gradus aliqui in 

Facultate Legis, sed Officium suum ilia sint et Magistratus, ad 

Regis nutum duratura, Habitum tamen Indumenti sui (in qui- 

busdam) ipse extunc mutabit, sed non in omnibus Insigniis ejus. 

Nam Serviens ad Legem ipse existens, Roba longa, ad instar 

Sacerdotis, cum Capicio penulato circa Humeros ejus, et desuper 

Collobio, cum duobus Labelulis, qualiter uti solent Doctores 

Legum in Universitatibus quibusdam, cum supra descripto 

Birreto vestiebatur. Sed Justiciarius factus, loco Collobii, Cla- 



263 

mide induetur, Jirmata super Humerum ejus dexterum, caeteris 
Ornamentis Servientis adhuc permanentibus, excepto quod stra- 
gulata veste, aut Colons bipertiti, ut potest Serviens Justiciarius 
non utetur, et Capicium ejus non alio quam Menevero penulatur, 
Capicium tamen Servientis Pellibus agni?iis semper albis impli- 
catur. Qualem Habitum Te plus ornare optarem, cum Potestas 
Tibi fuerit, ad Decorem Status Legis, et Honorem Regni tui. 
Scire Te etiam cupio, quod Justiciarii Angliae non sedent in 
Curiis Regis, nisi per tres Horas in Die, scilicet, ab Hora VIII. 
ante Meridiem usque Horam XI. completam ; quia post Meridiem 
Curiae illce non tenentur. Sed Placitantes tunc se devertunt ad 
Pervisum, et alibi consulentes cum Servientibus ad Legem, et 
aliis Consilariis suis. Quare Justiciarii, postquam se refecerint, 
totum Diei residuum pertranseunt studendo in Legibus, sacram 
legendo Scripturam, et aliter ad eorum Libitum contemplando, 
ut Vita ipsorum plus contemplativa videatur quam activa. 
Sicque quietam illi Vitam agunt ab omni Sollicitudine et Mundi 
Turbinibus semotam. Nee unquam compertum est, eorum ali- 
quem Donis aut Muneribus fuisse corruptum. Unde et hoc 
Genus Gratiae vidimus subsecutum, quod vix eorum aliquis sine 
Exitu decedat, quod justis magnae et quasi appropriate? Bene- 
dictionis Dei est. Mihi quoque non minimi Muneris Divini 
censetur esse pensandum, quod ex Judicum Sobole, plures de 
Proceribus et Magnatibus Regni hucusque prodierunt, quam de 
aliquo alio Statu Hominum Regni, qui se Prudentia et Industria 
propria opulentos, inclytos, nobilesque fecerunl. Quanquam Mer- 
catorum Status, quorum aliqui sunt, qui omnibus Justiciariis 
Regni praestant Divitiis, Judicum Numerum in Milibus Hominum 
excedat. Nam Fortunae, quae nihil est, istud ascribi non poterit, 
sed Divinae solum Benedictioni fore, arbitror, tribuendum. Cum 
ipse per Prophetam dicit, "Quod Generatio Rectorum benedi- 
cetur." Et alibi de Justis loquens Propheta, ait, " Quod Filii 
eorum in Benedictione erunt." Dilige igitur, Fili Regis, Justi- 
tiam quae sic ditat, colit, et perpetuat Foetus Colentium earn. 
Et Celator eslo Legis, quae Justitiam parit, ut a Te dicatur, 
quod a Justis scribitur. " Et Semen eorum in ceternum ma- 
nebit." 



264 



CAP. LII. 

Princeps. Unum jam solum superest, Cancellarie, decla- 
randum, quo parumper adhuc fluctuat, inquietatur quoque 
Mens mea; in quo si earn solidaveris, non amplius Te Quae- 
stionibus fatigabo. Dilationes ingentes, ut asseritur, patiuntur 
Leges Angliae in Processibus suis, plus quam Leges aliarum 
Nationum; quod Petentibus, nedum Juris sui Prolatio est, 
sed et Sumptuum quandoque importabile Onus, et maxime in 
Actionibus illis, in quibus Damna Petentibus non redduntur. 



CAP. LIII. 

Cancellarius. In Actionibus personalibus extra Urbes et 
Villas Mercatorias, ubi proceditur secundum Consueludines et 
Libertates earundem, Processus sunt Ordinarii, et quantaslibet 
Dilationes patiuntur, non tamen excessivas. In Urbibus vero, 
et Villis illis, potissimum cum urgens Causa deposcat, celeris, 
ut in aliis Mundi Partibus, fit Processus ; nee tamen (ut alibi) 
ipsi nimium aliquando festinantur, quo subsequitur Partis Laesio. 
Rursus in realibus Actionibus, in omnibus fere Mundi Partibus, 
morosi sunt Processus, sed in Anglia quodammodo celeriores. 
Sunt quippe in Regno Franciae, in Curia ibidem summa, quae 
Curia Parliamenti vocitatur, Processus quidam, qui in ea plus 
quam triginta Annis pependerunt. Et novi Ego Appellationis 
Causam unam, quae in Curia ilia agitata fuit, jam per decern 
Annos suspensam fuisse, et adhuc verisimile non est, earn infra 
Annos X. alios posse decidi. Ostendit et mihi dudum, dum 
Parisiis morabar, Hospes meus Processum suum in Scriptis, 
quern in Curia Parliamenti ibidem ipse tunc VIII. Annos, 
pro IV. s. Reditus, qui de Pecunia nostra VIII. d. non exce- 
dunt, prosecutus est, nee speravit se in VIII. Annis aliis 
Judicium inde obtenturum. Alios quoque nonnullos novi Casus 
ibidem, his similes. Sicque Leges Angliw, non tatitas, ut mihi 
visum est, Dilationes sortiuntur, ut faciunt Leges Regionis illius. 
Sed revera, pernecessarium est, Dilationes fieri in Processibus 
omnium Actionum, dummodo nimium ipsa? non fuerint excessivae- 



265 

Nam sub illis Partes, et maxime Pars rea, quam saepe sibi pro- 
vident de Defensionibus utilibus, similiter et Consiliis, quibus 
alias ipsi carerent. Nee unquam in Judiciis tantum imminet 
Periculum, quantum parit Processus festinatus. Vidi nempe 
quondam apud Civitatem Sarum, coram Judice quodam, ad 
Gaolam ibidem deliberandam cum Clerico suo assignato, Muli- 
erem de Morte Mariti sui infra Annum, de Interfectione ejus, 
attinctam, similiter et combuslam. In quo Casu licuit Judici illi, 
usque post Annum ilium, Arretamentum sive Disrationem 
Mulieris illius respectuasse. Et post Annum ilium vidi unum 
de Servientibus interfecti iUius, coram eodem Justiciario, de 
Morte ejusdem Magistri sui convictum ; qui tunc publice fate, 
batur ipsummet solum Magistrum suum occidisse, et magistram 
suam, Uxorem ejus, tunc combustam, innocentem omnino fuisse 
de Morte ejus ; quare ipse tractus et suspensus fuit. Sed tamen 
omnino, etiam in ipso Mortis Articulo, Mulierem combustam, 
immunem a Crimine illo fuisse, ipse lugebat. O quale putandum 
est, ex hoc Facto, Conscientiae Discrimen et Remorsum evenisse 
Justiciario illi v tarn praecipiti, qui potuit Processum ilium juste 
retardasse? Saepius proh Dolor, ipse mihi fassus est, quod 
nunquam in Vita sua Animum ejus de hoc Facto ipse purgaret. 
Crebro enim in Deliberationibus, Judicia maturescunt; sed in 
accelerato Processu, nunquam. Quare, Leges Anglian Essonium 
admittunt, qualia non faciunt Leges alia? Mundi universi. Nonne 
quam utiles sunt Vocationes ad Warrantum f Auxilia de his, 
ad quos spectat Reversio Tenementorum, qui in Placitum dedu- 
cunt, et qui habent Evidentias eorundem. Auxilia etiam de 
Coperticipibus, qui reddent pro Rata si Tenementum Comparticipi 
allottatum evincatur: Et tamen haec Dilationes sunt, sicut Tu, 
Princeps, alias nosti ex Doctrina mea. Et Dilationes his similes 
Leges aliae non admittunt, neque Leges Angliae frivolas et 
infructuosas permittunt Inducias. Et si quae in Regno illo Dila- 
tiones in Placitis, minus accommodae, fuerint usitatae, in omni 
Parliamento amputari illae possunt, etiam et omnes Leges aliae, 
in Regno illo usitatae, cum in aliquo claudicaverint, in omni 
Parliamento poterunt reformari. Quo recte concludi potest, quod 
omnes Legis Regni illius optima; sunt, in Actu vel Potentia ; quo 
faciliter in Actum duci poterunt, et in Essentiam realem. Ad 
quod faciendum, quoties iEquitas id poposcerit, singuli Reges 
ibidem Sacramento astringuntur solemniter praestito Tempore 
Receptionis Diadematis sui. 



266 



CAP. LIV. 

Princeps. Leges illas, nedum bonas, sed optimas esse, 
Cancellarie, ex Proseeutione tua in hoc Dialogo certissime de- 
prehendi. Et si quae ex eis meliorari deposcant, id certissime 
fieri posse, Parliamentorum ibidem Formulae nos erudiunt. Quo, 
realiter, potentialiterve, Regnum illud semper praestantissimis 
Legibus gubernatur, nee tuas in hac Concionatione Doctrinas 
futuris Angliae Legibus inutiles fore conjicio, dum non delectet 
regere Legibus, quae nOn delectant. Fastidit namque Artificem 
Ineptio Insirumenti, et Militem ignavum reddit Debilitas Lancia? 
et Mucronis. Sed sicut ad Pugnam animatur Miles, cum nedum 
sibi prona sint Arma, sed et magis cum in Actibus bellicis ipse 
sit expertus, dicente Vegetio de re militari, quod Scientia Ret 
bellicce dimicandi Audaciam nutrit. (Quia nemo facere metuit 
quod se bene didicisse confidit.) Sic et Rex omnis ad Justitiam 
animatur, dum Leges, quibus ipsa fiet, nedum justissimas esse 
agnoscit, sed et earum ille expertus sit Formam et Naturam, 
quas tantum in Universali, inclusive et in confuso, Principi scire 
sufficiet, remanente suis Judicibus earum discreta, determina- 
taque Peritia et Scientia altiori. Sic equidem et Scriplurarum 
divinarum Peritiam, ut dicit Vincentius Beluacensis in Libro de 
Morali Institutione Principum, Omnis Princeps habere deberet ; 
cum dicat Scriptura superius memorato, quod " Vani sunt omnes, 
in quibus non est Scientia Dei." Et Proverbiorum XVI. scribatur, 
" Divinatio (id est, divina Sententia, vel Sermo divinus) sit in 
Labiis Regis ;" et tunc, " In Judicia non errabit Os ejus." Non 
tamen profunde, determinateve intelligere tenetur Princeps Scrip- 
turas sacras, ut decet sacrce Theologice Professorem : Sufficit 
namque ei earum in confuso degustare Sententias, qualiter et 
Peritiam Legis suae. Sic et fecerunt Carolus Magnus Ludovicus 
Filius ejus, et Roberius quondam Rex Francis, qui hanc scripsit 
Sequentiam (Sancti Spiritus adjit nobis Gratia ;) et quam plures 
alii, ut in XV. Capite Libri prasdicti, Vincentius praedictus lucu- 
lenter docet. Unde et Doctores Legum dicunt, quod " Impe- 
rator gerit omnia Jura sua in Scrinio Pectoris sui:" non, quia 
omnia Jura ipse noscit realiter et in Actu, sed dum Principia 
eorum ipse percipit, Formam similiter et Naturam, omnia Jura 
sua ipse intelligere censetur, quae etiam transformare ille potest, 



267 

mutare et cassare ; quo in eo potentialiter sunt omnia Jura sua., 
ut in Adam erat Eva, antequam plasmaretur. Sed quia, Can- 
cellarie, ad Legum Angliae Disciplinatum mihi jam conspicio 
sufficienter esse suasum, quod et in hujus Operis Exordio 
facere promisisti; non te amplius hujus Praetextu sollicitare 
conabor; sed obnixe deposco, ut in Legis hujus Principiis, ut 
quondam incepisti, me erudias, docens quodam modo ejus agnos- 
cere Formam et Naturam, quia Lex ista mihi semper peculiaris 
erit inter easterns Leges Orbis, inter quas ipsam lucere conspicio, 
ut Lucifer inter Stellas. Et dum Intentioni tuae, quae ad Col- 
lationem hanc concitatus es, jam satisfactum esse non ambigo, 
Tempus postulat et Ratio, ut Nostris Colloquiis Terminum con- 
feramus : reddentes ex eis Laudes Ei et Gratias, qui ea incepit, 
prosecutus est, et finivit, Alpha et Omega quem dicimus : quem 
et laudet omnis Spiritus. AMEN. 



APPENDIX. 



No. I. 

In the Pepysian Library belonging to Magdalene College, 
Cambridge, is a very curious MS. containing notes which were 
taken of the transactions in the House of Lords at the period 
of the Revolution by a peer of the Tory party. It is there 
related that Lord Nottingham had prepared a statement of 
reasons for the Protest which is entered to the Vote for agreeing 
with the Commons that the throne was vacant. The party, 
however, considering that more persons would probably be 
prevailed upon to sign the Protest if the grounds of it were 
not expressed, nothing more was entered in the Journals than 
the names of the dissentients. Lord Nottingham's reasons, in 
his own hand-writing, were copied by the author of the manu- 
script, and are as follows: 

1. Because though the King can resign his crown by consent 
of Parliament, yet neither the Parliament nor the whole people 
of England have authority to depose him without his own 
consent; the King being supreme, and therefore there can 
be no superior to him. 

2. Or if the Parliament could depose him, yet the monarchy 
of England is hereditary by the fundamental constitution of 
this government, and has been often declared by Parliament 
to be so. 

3. No act of the King alone can abrogate the right of his 
heirs without Act of Parliament, and therefore the throne 
cannot be now vacant. 

4. The consequence of this vote is that the monarchy is 
elective ; which is contrary to the original constitution of the 
government, and destructive of it, and the peace and welfare 
of the nation. 



270 



The same MS. contains the following Speeches of Lord 
Delamere and Lord Montague. 

Lord Delamere. — I have long thought myself absolved from 
my allegiance to King James. I am satisfied that I owe him 
none, and I resolve never to pay him any. And if King 
James comes again I will fight against him and will die single 
with my sword in my hand, rather than pay him any obedience. 

Lord Montague. — I am so perfectly satisfied of the throne's 
being vacant, that I have a dispensation within myself with- 
out the help of one from my Lord Jefireyes or Sir W. Herbert, 
and therefore I do declare that from this day I look upon 
myself to be absolved from all allegiance to King James. 

See further on the subject of the above Protest, Burnet's History 
of his own times, last Edition, Vol. Ill, p. 376, Note " u." 



271 



No. II. 

The following Extracts from Foetescue's Treatise on 
Absolute and Limited Monarchy, are offered for the 
purpose of shewing how far his sentiments respecting 
tlie liberty of the subject, which he expressed during his 
exile, and whilst he held the office of Chancellor to 
Henry VI, are coiisistent with the writings which he 
subsequently composed for the instruction of Edward IV, 
after his reconciliation to that Prince. Thus the reader 
will have placed before him some opinions respecting the 
freedom of the People of England, which were delivered 
in the reign of a Sovereign, as well of the York as of 
the Lancastrian family. These Extracts will also con- 
firm a belief which cannot fail to arise from a perusal 
of the tract "De Laudibus," that the English in early 
times enjoyed more liberty than the inhabitants of France 
and other Continental Nations, and that they were 
themselves sensible of their superior privileges. — The 
specimen of the language of this Country as written 
in the reign of Edward IF, may likewise be thought 
a matter of curiosity. (For an enquiry respecting 
the date of the Treatise on Monarchy, see Biog. Brit. 
Art. Fortescue.) 



"CHAP. XII. 

Hereafter ys schewyd, what Harme would come to Englond, if 
the Commons thereof were Pore. 

Some Men have said, that it war good for the Kyng, that 
the Comons of Englond wer made poer, as be the Comons of 
Fraunce. For than, thay would not rebell as now thay done 



often tymes; which the Comons of Fraunce do not, nor may 
do; for they have no Wepon, nor Armor, nor Good to bye 
it withall. To thees maner of Men, may be said with the 
Philosopher, Ad parva respicientes, de facili enunciant ; that 
is to say, thay that seen fewe thyngs, woll sone say their 
Advyse. Forsothe thoos folkys consyderyn litil the Good of 
the Realme of England, wherof the Might most stondyth upon 
Archers, which be no rich Men. And if thay were made 
porer than they be, they schuld not have wherewith to bye 
them Bowys, Arrowes, Jakkes, or any other Armor of Defence, 
whereby thay might be able to resyste our Ennymyes, whan 
thay liste to come upon us, which thay may do on every 
syde, consydering that we be an Ileland; and as it ys said 
before, we may not have sone Socors off any other Realme. 
Wherfor we schuld be a Pray to al other Ennymyes, but if we 
be mighty of our self, which Might stondith most upon our 
poer Archers ; and therfor thay nedyn, not only to have such 
Abilyments as now is spoken of, but also thay nedyn to be 
mich exercysyd in schotyng, which may not be done with- 
out right grete Expensys; as every Man experte theryn 
knowyth right well. Wherfor the makyng poer of the 
Comons, which is the makyng poer of our Archers, schuld 
be the Distinction of the grettest Might of our Realme. 
************ 
Item, It is the Kyngs Honor, and also his Office, t<5 make his 
Realme riche ; and yt ys Dishonor whan he hath a poer Realme, 
of which Men woll say, that he reygnyth upon Beggars; yet 
it war mych gretter Dyshonour, if he fownd his Realme riche, 
and than made it poer. And also as it were gretely ayen&te his 
Consyence, that awght to defend them, and their Goods, if 
he toke from them their goods, without lawfull Cause; from 
the Infamy e whereof God defend our Kyng, and gyve him 
Grace to augment his Realme in Rycesse, Welth, and Fro- 
speryte, to his perpetual Lawde and Honour. Item, The 
Realme of Fraunce gevyth never frely of their own good Will, 
any Subsydye to their Prynce, because the Comons therof be 
so poer, as thay may not gyve any thyng of their own Goods. 
And the Kyng ther, askyth never Subsydye of his Nobles, for 



2T3 

drede that if he chargyd them so, thay would confedre with 
the Comons, and peraventure putt hym downe^ But our 
Comons be riche, and therfor thay gave to their Kyng, at 
sum tymys Quinsimes and Dismes, and often tymys other 
grete Subsydyes, as he hath nede of their Goods for the 
Defence of his Realme. How grete a Subsydye was it, whan 
this Realme gave to their Kyng, a Quinsime and Disme Quin- 
quinall, and the ix th Flees of their Wolls, and the IX th Scheff of 
their Graynys, for the Terme of five Yers. This might thay 
not have done, if thay had ben empoveryshyd by their Kyng, 
as the Comons of Fraunce ; nor such a Graunte hath byn 
made by any Realme of Cristyndome, of which any Cronycle 
makyth mention. Nor non other Realme may, or hath Cause 
to do so. For thay have not so mich Fredome in their own 
Goods, nor be entreatyd by so favourable Lawys as we be, 
except a fewe Regyons before specyfyed. Item, Wee see dayly, 
hou Men that have lost their Goods, and be fallyn into Povertie, 
becomyn anon Robbers and Thefes, which would not have 
be such, yf Povertie had not brought them thereto. How 
many a Thefe than wer like to be in this Land, if al the 
Comons were poer. The grettest Sewertie truly, and also the 
most Honour that may come to the Kyng is, that his Realme be 
riche in every Astate ; for nothyng may make his People to arise, 
but lacke of Goods, or lacke of Justyce. But yet certeynly whan 
thay lack Goods thay will arise, sayyng thay lack Justyce. 
Nevertheless if thay be not poer, thay will never aryse, but if 
their Prince so leve Justice, that he gyve himself al to Tyrannye." 



CHAP. X. 

Hou that the Crown may be best endowed. 

************ 

Wherefore ther is no parte of thoos maner of Subsydeys 
that might be good for owr Soveryng Lord, but if it war, 
that he might sell to his Subgetts the Salte that comyth hether. 

S 



274 

Yn which thyng he schall have more Grutch of the People, 
than Profyte. For in Fraunce, the People salten but litill meate, 
except their Bacon, and therfor they would bye lityl Salt ; but 
yet they be artyd to bye more Salte than they would. For the 
Kyngs Officers bryng to their Housys every yere, as moch 
Salte as by their Conjecture ys reasonable, to the nomber of 
Men, Women, and Children that dwellyn theryn, for which 
they schal pay though they wold not have so myche. This 
Rule and Order wold be sore abhorred in Englond, as well by 
the Merchaunts that be wontyd to have their Freedome in 
byyng and sellyng of Salte, as by the People that usen mich 
to salte their Meats more than do the French Men ; by occasyon 
wherof thay wol than at every Meale grutche with the Kyng, . 
that entreatith them more rigorously than his Progenitours have 
done. And so his Highness schal have therof, but as had the 
Man that scheryd his Hogge, moche Crye and no Wull. In 
Flanders and other Lordscippis of the Duke of Burgoyne down- 
ward, he taketh certeyn Imposicions made by hymself upon 
every Oxe, every Schepe, and upon other thyngs sould, and 
also upon every Vessel of Wyne, every Barell of Beer, and 
other Vytayls sould in his Lbrdschip, which is no litill Revenue 
to hym yerely : but yet he doth it magre the People, which God 
defend that the Kyng our Soveryng Lord schuld do upn his People, 
without their Graunts and Assents. Nevertheless with their 
Assents, such maner of Subsydye, if ther could not be found 
a better Meane of the encreasing of the Kyngs Revenuz, were 
not unreasonable. For theryn, and yn the Gable of Salt, every 
Man schal bere the charge therin equally. But yet I would 
not, that such a new Custome and Charge were put upon the 
People, in our Soveryng Lords dayes, with which his Pro- 
genitors chargyd them never, if a better and more convenient 
way could be found. 



*'• 



INDEX 



OF 

THE PRINCIPAL MATTERS TREATED OF 
IN THIS WORK. 



Absolute Government, page 26, 141. 

Admiralty, jurisdiction and procedure of the Court, 114, 114n. 

Apprentices ad legem and ad barras, 192 n. 

Aristotle, authority of in English Law, 5 n. 

Attainder, bills of, 118 n. 

Attaint of Jurors, 90, 98 n. 

Bastardy, early opinions in England respecting, 148, 152, 152 n. 

Boroughs, 80, 80 n. 

Brute the Trojan, account of, 39, 39 n. 

Challenges of Jurors, 85, 87 n. 106. 
Chivalry, Court of, 115, 115 n. 

Guardianship in, 163 n. 167, 167 n. 

Cities, 80, 80 n. 

Civil Law, Progress and Authority of in England, 5 n. 53 n. 
123, 123 n. 

indebted to the Schools of Philosophy, 9 n. 

Guardianship, 162, 163 n. 

Legitimation, 145, 152 n. 

Theft, 172, 173 n. 

Slavery, 155, 158 n. 

Ingratitude, 172. 

Trial, 67, 76, 76 n. 101 n. 



276 



INDEX. 



Constitution English, History of, 39, 42 n. 

Principles of, 42 n. 

Coronation, the Ceremony and Oath, 126. 
Courts of Justice, secret and illegal, 138, 139 n. 
Counties, Division of, 78, 78 n. 
Quillets of, 78 n. 

Danish Laws, 53 n. 

Delays in Law, 201, 202, 204 n. 

Descent, ancient rule of with respect to the half-blood, 15, 15 n. 

Dispensing Power, 31 n. 

Divine Right, History of the Opinions concerning, 45 n. 

Divinity, Study of by English Lawyers, 5 n. 85. 

Duel, Trial by, 64 n. 

Education, Military in England, 167, 167 n. 

of Princes, 18, 18 n. 22, 23. 

England, its commendation and commodities, 102, 102 n. 103 n. 
137 n. 

comparative state of Liberty with other countries, 

125, 129, 132 n. 134. 

English, Manners of in former times, 137, 137 n. 

Language, progress of, 179 n. 

Escuage, 169 n. 
Esquire, 104, 106 n. 
Essoins, 203, 204 n. 

Fortescue, extracts from his Treatise on Absolute and Limited 

Monarchy, 271. 
France, Government of, and condition of the inhabitants in, 

129, 132 n. 
Frankleyne, 104, 108 n. 

French, use of the French Language in England, 177, 179 n. 
Fringe, his Case, 69. 

Government, origin and formation of, 35, 37, 38 n. 41, 42 n. 
Guardianship, law of, 162, 163 n. 






INDEX. 277 

Hamlets, division of, 80, 8 n. 

Henry VI. Insecurity of property in the time of, 134 n. 

Hundreds, 79, 79 n. 86. 



Impeachments, law of, 118 n. 

Impositions, various forms of without the consent of Parlia- 
ment, 29 n. 

Inns and Innkeepers, law respecting in the time of Henry VI. 
134, 134 n. 

Inns of Court, History of, 182, 184 n. 

■ Studies in, 182, 184 n. 

their Masques and Revels, 184, 185 n. 

Judges, Antiquities respecting, 184. 
Oath of, 194. 

Character of, 196, 198. 

Jurors, Immunity of, 99 n. 

Jury, Trial by, 63, 63 n. 85, 87 n. 89, 92, 93 n. 100, 109 n. 

Antiquity of, 63 n. 



King of England, his power, and its limits, 26, 28 n. 136, 136 n. 

— Revenue of, 136 n. 

Interference of, with the Administration of 

Justice, 22, 23 n. 
Coronation Oath of, 126, 126 n. 



Knights, 104, 106 n. 
Knights' Service, 169 n. 

Latin, use of in ancient records, and legal proceedings, 180 n. 
Law, Definitions of, 8, 8 n. 

of God, 48 n. Ill, 112 n. 113. 

of Nature, 48, 48 n. 

of Merchants, 116, ll6n. 

Wager of, 65 n. 



278 INDEX. 

Law of England, sources and history of, 51, 52 n. 
Law Proceedings, Language of, 177, 179 n. 
Lawyers, English, character of, 186 n. 

formerly Ecclesiastics, 4 n. 

Studies of in former times, 4 n. 184, 185. 

Lewis XI. of France, his despotic government, 129, 133 n. 
Lex Regia, 26, 125, 125 n. 

Liberty, favoured by the Law of England, 157- 

early opinions in England respecting, 45 n. 

Limited Monarchy, 26, 141, 138. 

Maxims of the English Law, 20, 20 n. 
Military Exercises and Education, 167, 167 n. 
Military Tenures, 169 n. 
Money, ancient value of, 104 n. 183 n. 
Murder, remarkable case of, 203. 

Norman Laws, 53 n. 

Oath, Coronation, 126, 126 n. 
Sheriffs', 81 n. 

Judges', 194, 24 n. 

Ordeal, Trial by, 65 n. 
Original Compact, 46 n. 

Pains and Penalties, bills of, 118 n. 

Panel, 86, 87 n. 

Parliament, Acts of, their form and language, 59 n. 180 n. 

Declarations of Law by the respective houses of, 60 n* 

History and Constitution of, 55, 55 n. 57 n. 

Trial before Parliament and a Jury, 65 m 

Parliamentum indoctum, 187 n. 

Partus sequitur ventrem, 155. 
Parvyse, 196, 197 n. 

Pastoral habits of the English in former times, 102, 103 n. 
Philips Fabian, his writings against the Abolition of Military 
Tenures, 166 n. 



INDEX. 279 

Prerogative, opinions respecting, 44 n. 
Proclamations, law respecting, 60. n. 
Protection, writ of, 205 n. 
Purveyance, 134, 134 n. 

« 
Rack, 70, 71 n. 73 n. 

Readings, ancient, in the Inns of Court, 184 n. 

Rege Inconsulto, writ of, 205 n. 

Ranks in England, 104, 106 n. 

Responsibility in the Advisers of the Crown, 23 n. 

Revolution, Protest of Lord Nottingham, respecting the vacancy 

of the Throne by the Abdication of James II. 269- 

Salt Gabelle, of in France, 130, 132 n. 

Saxon, Laws, 53 n. 

Scotland, feudal subjection to the English Crown, 39, 39 n. 

Secret Le, in France, 74 n. 

Secta, Examination of, 67 n. 

Serjeants at Law, antiquities respecting, 189, 192 n. 

Sheriff, office and duties of, 81, 81 n. 85. 

Slavery, 155. 

Socage, Guardianship in, 163 n. 

Statutes, how made in England, 55, 59 n. 

Language of, 1 80 n. 

Tallages, 26 n. 

Tallagio non concedendo, Statute of, 59 n. 

Taxation arbitrary, history and illegality of, 26, 28 n. 136. 

Temple, description of in time of Henry VI. 178, 178 n. 

Theft, Progress of the Law respecting, 172, 172 n. 

manifest, 172, 172 n. 

Theocracy of the Jews, 27, 27 n. 
Torture, Practice of, 70, 71 n. 73 n. 
Trial, various forms of, 63 n. 

mode of proceeding in Civil Matters, 89. 






280 INDEX. 

Trials in Criminal Matters, 92. 

' ■ anterior and subsequent to the Revolution, 93 n. 



Universities, Education of Lawyers at, 175, 175 n. 

Verdict, 93, 93 n. 
Villenage, 158 n. 
Vills, division of, 79> 79 n - 
Visne, 86, 87 n. 89, 101. 
Voluntas pro facto, 173 n. 

Wapentakes, division of, 79> 79 n - 
Wards, 162, l63n. 
Wars, private in England, 170 n. 
Witnesses, Trial by, 67 n. 

to a deed, joined with the Jury, 117, 117 n. 

Writs, History of, 182, 182 n. 

Yeoman, 104, 106 n. 






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